Historical stages of judicial system development in the republic of Kazakhstan
Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011
Author: Kozhuganova Dinara, Kazakh-American Free University, Kazakhstan
The formation of a separate Kazakh state took place in the
15th – 16th centuries. The ancient law of the Kazakh people was formed on the
basis of legal views and regulatory acts of different nomadic and semi-nomadic
peoples. They replaced each other and consisted of ancient Turkic and Kazakh
The Kazakh law, formed on the basis of cultural and
democratic traditions of the legal system, outlasted its own epoch. It had
worked until the 19th – the beginning of the 20th centuries. The longevity of
Kazakh law could be explained by two factors: firstly, the economic grounds of
the nomadic civilization had been preserved until modern times. Secondly, the
Kazakh law was very close to the folk and expressed its spiritual essence.
The first period of the development of the judicial system
of Kazakhstan was presented by the courts of kaziy, aksakal, and biy. The
history of Kazakh court originated since ancient times when folk customs and
traditions and religious canons thought to be the laws in the Kazakh steppe.
One of the founders of the legal codes of the Kazakh Khanate
was Mayky-bi – a great diplomat and public leader, the adviser of Genghis Khan.
The strengthening of the country is also connected with Kassym Khan – the son
of Az Zhanibek Khan. The first systematization of legal customs and regulations
(known as “the Truth of Kassym Khan”) took place under his rule. Essim Khan
also made great contribution to the development of the Kazakh legal system. He
enhanced the responsibility of warriors thus strengthened war laws. This was
caused by the necessity to protect the country from the aggressive rushes of
Dzungars. At the end of the 17th century Az Tauke, Tole Bi, Kazbek Bi, and
Aiteke Bi created “Zhety Zhargy” which is a direct law system and the judicial
power code [1, p. 122].
The last quarter of the 18th century is a very important
historical period in the formation of official judicial system of Kazakhstan.
At that time the Kazakh people were subjected to Russia and practically lost
their right for self-government – there functioned Russian laws together with
the courts of biys. On December 23, 1786 Yekaterina II issued the Decree on
Formation the Frontier Court in the Kirghiz (Kazakh) Steppe projected by the
then General-Governor of Orenburg Igelstrom. Every head of the tribal union was
appointed the chairman of local tribal court. Mullahs were appointed the
secretaries and six Kazakh foremen were appointed the advisers. Two Tatars and
two Russians were inspectors. In this way the official judicial power intruded
into the life of the Kazakh people. The given period could fairly be called the
second stage of the historical development of the judicial system in the
Republic of Kazakhstan.
In 1918-1920, at the height of the civil war, in some regions
of the country White Russians seized power. As a result, revolutionary
tribunals fell. For the purpose of their restoration on April 12, 1919 the
Kazakh Military Revolutionary Committee re-established “The Statute of
Revolutionary Tribunals”. On December 31, 1922 the Union of Soviet Socialist
Republics was formed. This fact greatly changed the structure of judicial
system and marked the third period of the judicial reformation in Kazakhstan.
At the beginning of 1923 the All-USSR Central Executive Committee issued the
decrees on formation of the supreme courts in the republics. In this connection
on April 10, 1923 the Supreme Court of the Russian Soviet Federative Socialist
Republic issued #31 Decree. Article 8 of the decree states, “… herewith 57
staff units are established for the administration of the Turkistan department
of the Supreme Court, approved by the Resolution of the Supreme Court Presidium
dated March 17, this year. Enclosure: the Turkestan department staff”. On April
11, 1923 according to the Resolution of the All-USSR Central Executive
Committee the Supreme Court of the Kirghiz (Kazakh) department was formed
within the structure of the Russian Soviet Federative Socialist Republic.
1925 is considered a very important year in the life of the
country. There were some important changes in the system of state and
territorial administration. According to the decision of Russian authorities
the territory of Kazakhstan was divided. Southern regions went to Turkestan. In
1924 Zhetysuyskaya Oblast and Syrdaryinskaya Oblast were included in the Kazakh
ASSR. At that period the Kazakh branch of the Supreme Court of the RSFSR was
preparing the project revising the regulations of the court structure. This was
caused by the fact that there was not Collegium for Civil Cases in the Kazakh
department of the Supreme Court. Civil cases were tried in provincial (oblast)
courts while protests and complaints were sent directly to the Supreme Court of
the RSFSR. The given fact caused the necessity of the formation of the
Collegium for Civil Cases [2, p. 35].
As it has already been mentioned, by the time when
Kazakhstan joined Russia, judicial functions had been executed by khans,
sultans, and biys (tribal heads) orally on the basis of the Kazakh customary
law. Khans and sultans together with powerful biys tried the most important
case categories related to the relations between Kazakh Zhuzs and several
tribes. They also tried the cases of the murders of feudal-tribal aristocracy,
Professor E.B. Abdrassulov fairly states that the Kazakh
Court played an important role not only as the justice institute of the Kazakh
steppe, but it also greatly contributed to the development of the customary law
Before the joining of Kazakhstan and Russia the biys
fulfilled not only the judicial functions. They also functioned as local
administrative organs. Their power was rather strong. The Kazakh biy was not
only the judge but also the head of the division (aul). There were not any
special organs executing the sentences.
The origin of biys as a particular category refers to the
ancient times and requires careful study. The status of “biy” was not strictly
hereditary but it was considered very important. In 1864 Ch. Valikhanov in his
work “The Notes on the Judicial Reform of the Kirghiz-Siberian Department” gave
convincing evidence of the hereditary gaining of the biy status in the Kazakh
society. In particular, he pointed that at the end of 18th century in the
Karakesek clan of the Middle Zhuz there lived a famous biy Kazbek. His
descendants are still having the status of biy – Kazbek, Bekbulat, Tlenchi, and
Alchibay [4, с.87].
According to the ancient norms of customary law, the biys
were appointed by aksakals (clan heads) and other honorable rich people having
great experience and knowledge of the legal customs of the country.
The changes in social and economic relations caused the
changes in the functions of the biy court. But the biy court in the
pre-revolutionary Kazakhstan was always considered the organ of feudal
supremacy as it suppressed the resistance of working population of the country.
For example, A. Zuev characterizes biys as “the wisest and
the worthiest”. In his opinion, the Kazakh court of biys was “as pure and
truthful as the life itself”. In spite of the past centuries and years when
biy-judges held the priority position in the Kazakh society and in the Kazakh
khanates, in the opinion of the author, “in modern Kirghiz (Kazakh) man there
are still alive the inspiring legends of the past: telling something to them he
is always ready to add either a deep and hard sigh or such words that cause
sadness among the listeners”.
Important changes to the biy court jurisdiction were made
according to the Regulations on Siberian Kirgiz People dated 1822. According to
it, all legal cases were divided into three categories: 1) criminal cases, 2)
legal actions, and 3) administration complaints. Criminal cases were only 1)
high treason, 2) murder, 3) robbery and barymta, 4) obvious disobedience to the
authorities. If being accused of these crimes the Kazakhs had to be tried in
tsar’s courts on the ground of imperial laws [5, p.105].
So, the most important categories of criminal cases,
touching upon the interests of imperial power, were taken from the jurisdiction
of the biy court. According to the Regulations of 1822 all other cases
including physical injuries, battery, insults, stealing, fraud, intentional
arson, bribery, false denunciation, etc. were considered legal actions and were
subject to the jurisdiction of the biy court. The court tried them on the
ground of the customary law. These changes to the jurisdiction of the biy and
imperial courts influenced greatly their punitive activity on the application
of the material criminal norms. The Regulations of 1822 also established the
order of appeal of the biy court’s verdicts. Verdicts were recognized not
final, the dissatisfied side could bring a complaint to the Oblast Head who
decided their approval or not. In that way the activity of the biy courts were
taken under control by tsar’s administration. The new order of appeal led to a
significant decline of the the biy court role.
The next restriction of the biy court activity took place in
the Siberian department on the ground of the act “On the Spreading of General
Imperial Laws on Siberian Kirghizs” dated May 19, 1854. According to it,
besides the above-mentioned categories all cases related to malfeasance such as
forgery, perjury, and the crimes committed not in nomads’ camps but in towns
and villages were taken from the jurisdiction of the biy court .
For the purpose of creation of a “strong” judicial system in
local places the tsarist government decided to give the biy court the elements
of bureaucratic legal machinery. To make this the title of biy was given only
to sultans and aul-heads having served on the position not less than six years,
and to the persons “highly decorated and having the positions approved by the
government. Those people who had had the title of biy before the law
promulgation in 1854 retained it either [7, p. 311].
According to the Provisional Regulations of 1867 and 1867
the court of biy was considered “public court”. By this way the tsarist
government wanted to hide the point of the court, i.e. the means of colonial
oppression and feudal exploitation of the folk. The new court was different not
only from the ancient court of biys but also from the court of the first half
of the 19th century. According to the new laws the positions of biys were
formally considered elective ones. The elections were held simultaneously with
the elections of “volostnoy upravitel’” (regional head) at the meetings of
Pentecostals (electors) for the term of three years. The Provisional
Regulations of 1867 and 1867 established three instances of the biy court:
1) Single-handed biy court trying small claims - no more
than 300 roubles and finally no more than 30 roubles (according to the
Regulation of 1867 – no more than 100 roubles),
2) Volost biy court trying claims regardless of the sum and
finally up to 500 roubles. At the same time it was considered the court of
second instance for the claims decided by a single-handed biy court.
3) Extraordinary congress of biys triyng the cases between
the different volosts (small rural districts) of the same uyezd (district). It
was called in case of need by the order of uyezd-head. It was considered the
court of second instance for the cases decided by volost biy congresses.
To decide the cases between several uyezds the military
General-Governor gave the permission to call extraordinary congress of the biys
of the concerned uyezds.
All the above-mentioned characterizes not only the structure
and legal proceedings of the biy court but also gives an idea about the
activity of the court when applying the criminal customary law norms.
In Kazakhstan the biy courts had functioned on the ground of
the customary law until 1971.
1925 was very important for Kazakhstan. Great changes took
place in the state system and territorial administration. On June 1, 1925 the
Presidium of the All-USSR Central Executive Committee adopted the Decree “On
Formation in the Kazakh Department of the Supreme Court the Collegium for Civil
Cases and the Collegium of Appeal”.
The Kazakh Department of the Supreme Court completed the
improvement of the court system and structure in 1926. In 1926-1936 the Soviet
courts actively worked for supporting communist ideas of socialism
construction. In 1936 the activity of judicial organs was consolidated by a new
Constitution adopted by VIII All-Union Extraordinary Congress. On March 26,
1937 X All-Kazakhstan Soviet Congress issued the resolution about a new
Constitution of Socialist Kazakhstan. Article IX of the USSR Constitution and
Article VII of the Kazakh SSR Constitution covered the issues of organization
and formation of prosecutor’s judicial organs. In accordance with the KazSSR
Constitution on administrative division the judicial system was formed under
the aegis of Council of People’s Deputies. The KazSSR Supreme Court was the
higher judicial organ.
The necessity of judicial system reformation appeared in the
period when the power of party apparat grew weak, when the idea of independent
court as an independent branch became embedded in people’s minds. Though the
Constitution of KazSSR recognized the judges’ independence and subordination to
law, courts were officially considered the part of Soviet power.
The fourth period of the judicial system reformation started
when Kazakhstan became independent and adopted the main law of the country.
Essentially, reforms in the sphere of justice began when the Constitutional law
“About State Independence” dated December 16, 1991 was adopted. It declared
that the state power in Kazakhstan is built and functions on the ground of the
principle of its division into legislative, executive, and judicial branches.
The given principle was consolidated in the Constitution of the Republic of
Kazakhstan dated 1993. The Constitution also consolidated main principles of
the judicial power organization and activity. In accordance with the Constitution
to the tribunal belong the Constitutional Court, the Supreme Court, the Supreme
Arbitration Court, and subordinate courts [8, p. 4].
Social and everyday cases were considered one of the most
important problems. The Constitution strictly regulated the structure of
judicial organs, the authorities of judges, and the issues of judicial staff.
The Supreme Court was recognized the highest instance. Its functions included
cassation, supervision, and control over subordinate courts. It was also
recognized as the organ interpreting the questions of judicial practice and
legislative acts application. The Constitution provides that all intra-economic
questions relating to justice administration were entrusted to the head of the
Supreme Court board. The structures of oblast and urban courts were identical.
Military courts of the country by their competence and functions could enter
the plenary session of the Supreme Court of the republic. The institute of
people's assessors was abolished. The next step in the judicial system
reformation was the Decree “About Courts and Judges’ Status in the Republic of
Kazakhstan” dated 1995. The Decree has the force of a constitutional law. It
approved the status of the independent judicial power [9, p.12].
Judicial system is one of the main constituents of the
state, one of the key factors of the democratic development of the country on
the way of social, economic, and political modernization. The guarantee of the
state mechanism democratization is the principle of power branches division and
On January 28, 1993 the main Law of the sovereign Kazakhstan
– Constitution – was adopted. The new Constitution met the new social and state
system. Kazakhstan strengthened its own international authority. New social and
political relations arose in the country. Besides this, the Republic of
Kazakhstan proclaimed to be building the state governed by the rule of law. All
these dictated the necessity to conduct a cardinal legal reform meeting a new
social, political, economic, and international status of the new state. The
Decree of the President of the Republic of Kazakhstan “On the State Program of
the Legal Reform in the Republic of Kazakhstan” dated February 12, 1994 became
a historic document that approved the priority trends of the legal system
reform. A fair and independent court, a highly skilled impartial judge
appointed on the regular basis, the improvement of the social and economic
provision of judges – all these are the grounds for impartial justice and life
of dignity for the judiciary. This stresses the importance and immeasurable
responsibility of judges for the results of their work, and social protection
of the honor of the man in the gown .
The Constitution of 1993 played an important role in the
development of the legal system and the democratic processes in the society but
a great number of fundamental issues remained open. In this connection the
Decree of the President of the Republic of Kazakhstan “On the State Program of
the Legal Reform in the Republic of Kazakhstan” dated February 1994 became the
document defining the priorities of the judicial system development.
Thus, in the opinion of K.A. Mami, the judicial system
transformations are connected with the adoption of the first Constitution of
the sovereign Kazakhstan on January 28, 1993 as it consolidated the system and
the main principles of courts’ organization and activity.
The Constitution introduced such notions as “judicial power”
emphasizing its social purpose (rights and liberties protection, ensuring of
the Constitution supremacy, legality, and justice), subject and territorial
jurisdiction (its spreading on all cases and disputes arising on the basis of
the Constitution, laws and other acts, international contractual and other
commitments of the Republic of Kazakhstan), and its independence
(inadmissibility of entrusting its functions to other organs or officials)
The Constitution considerably changed a single judicial
system having introduced its three branches presented in the form of courts of
general jurisdiction, constitutional courts, and courts of arbitration. Each
branch except the Constitutional Court had its own subordinate courts. The
Supreme Court and the High Court of Arbitration were considered supreme organs
of judicial power. They supervised their subordinate courts. The Constitutional
Court was called the supreme organ of judicial power to protect the
Constitution of the Republic of Kazakhstan. The Principal Law dated 1993 banned
the formation and establishment of extraordinary, specialized courts,
functionary judges, and also extraordinary forms of legal proceedings. It meant
the inadmissibility of justice administration by extrajudicial organs.
The weighty stage in the realization of the principle of the
judicial branch independence was the adoption of the Constitution of the
Republic of Kazakhstan dated August 30, 1995. It provided all necessary
guaranties for ensuring courts’ independence. There were introduced the
election of the judges of the Supreme Court by the Senate of the Parliament and
the appointment of the judges of local courts by the President of the country.
There were formed the Supreme Judicial Council and the Qualification Collegium
of Justice. The system of arbitration courts was abolished. Their functions were
entrusted to the courts of general jurisdiction and their status and role in
the system of citizen’s rights and liberties protection were strengthened .
The next Decree of the President of the Republic of
Kazakhstan “About Courts and Judges’ Status in the Republic of Kazakhstan”
dated December 20, 1995 changed not only the functional nature of courts but
their social essence too. With the adoption of the Law the role of courts and
judges in the development of democratic processes and the formation of legal
state increased. Legal security and social prestige of judges also increased.
This Law introduced a new term “judicial power”. The exclusion of the judicial
power influence on courts became one of the key points of the judicial reform
The Decree of the President of the Republic of Kazakhstan
“On Measures of the Intensification of the Judicial System Independence in the
Republic of Kazakhstan” dated September 1, 2000 marked a new landmark in the
history of justice of the country. In accordance with the above-mentioned
Decree and the Decree of the President of the Republic of Kazakhstan “On
Measures of Ensuring the Functioning of the New System of Judicial
Administration” dated October 12, 2000 the Judicial Administration Committee
was formed under the Supreme Court. The functions of courts’ activity support
were handed over from the Ministry of Justice to the Judicial Administration
One more historic date in the judicial system of the
Republic of Kazakhstan was the adoption of a new Constitutional Law “About
Judicial System and Judges’ Status in the Republic of Kazakhstan” on December
25, 2000. The given Law increased the authority of court, consolidated the
irremovability and immunity of judges, and changed the procedure of judge appointment.
The adoption of the Constitutional Law “About Judicial
System and Judges’ Status in the Republic of Kazakhstan” on December 25, 2000
marked the beginning of the fifth period of the development of the independent
judicial system in Kazakhstan. Nowadays it is evolving and making the judicial
system of the Republic of Kazakhstan more perfect .
In accordance with the Decree of the President of the
Republic of Kazakhstan “On Measures of Improvement of the Law Enforcement
Activity in the Republic of Kazakhstan” dated January 22, 2001 the organs of
executive proceedings were given to the Committee. At the same time the
corresponding amendments were introduced into the Statute of the Judicial
The Judicial Administration Committee under the Supreme
Court is the authorized state organ carrying out logistics and other provision
of the activities of oblast, rayon and equivalent courts, and ensuring the
timely implementation of court orders. In this way the stumbling block of the judicial
reform - the problem of the exemption of local courts from the executive power
jurisdiction was finally solved .
The most important trend in the improvement of the judicial
system was the implementation of court specialization. Within the last decade
different economic, administrative, military, juvenile, and specialized
criminal courts successfully functioned in the republic. The Financial Court of
the Almaty City was formed in 2006.
On January 1, 2007 the institute of jury was introduced into
the legal system of Kazakhstan. Due to the reform of 2007 the exclusive
authorities of judicial sanctioning were handed over from the public
prosecution bodies to the judicial system. On February 2007 the Decree of the
President of the Republic of Kazakhstan approved the regulations on the jury
testing the vocational fitness of the current judge. According to it new
approaches to the estimation of judges’ legal status and to the selection,
training and placing of the judicial personnel were formed. The Institute of
Justice of the Academy of State Administration under the President of the
Republic of Kazakhstan trains future judges with different specializations.
Since January 2010 the judicial system has been working in a
new format. With the introduction of the cassational instance the supervisory
authority was abolished in oblast courts. The appeals instance was abolished in
the Supreme Court of the Republic of Kazakhstan and now the Supreme Court is
the superior judicial organ supervising subordinate courts. The given changes
of the legislation were realized for the purpose of the elimination of the
multistage system of justice, simplification and faster consideration of legal
The Decree of the President of the Republic of Kazakhstan
dated August 17, 2010 abolished the Judicial Administration Committee under the
Supreme Court of the Republic of Kazakhstan (formed in 2000). Its functions and
authorities were handed to the Ministry of Justice of the Republic of
Kazakhstan and to the Apparat of the Supreme Court of the Republic of
Kazakhstan. It is thought to increase the effectiveness of the judicial system.
According to the Conception of the Legal Policy of the
Republic of Kazakhstan for 2010-2020 approved by the President of the Republic
of Kazakhstan the country will face the difficult process of the improvement of
legal proceedings and judges’ status, the ensuring of the openness and
transparence of the judicial system. The given document gives the courts an
opportunity to realize their human-rights potential.
But according to some foreign analysts modern Kazakhstan in
many aspects is in the frontline of the judicial reformation in the post-Soviet
area. In Kazakhstan there is a full-fledged judicial system meeting the
requirements of a legal state. It is able to implement the Constitution and
laws and to protect the rights, liberties, and interests of the citizens .
Since the first days of its sovereignty the Republic of
Kazakhstan has been building a legal and democratic state to protect the legality
and keep the order in the country.
A fair judicial power is the guarantee of the protection of
the rights and freedoms of citizens’ and other subjects of law.
The judicial power became the reality in the Republic of
Kazakhstan. It is one of the main achievements in the development of our
statehood. Now the judicial power has all the attributes of the state
authority. It is a stabilizing power in the state able to protect citizens’
rights and freedoms and the whole society from social conflicts. It has the
right to control not only the conformity of the actions and decisions of other
organs and officials with the law but also the legal content of the regulatory
1. Культелеев Т.М. Уголовное и обычное право казахов. –
Алматы, 2004 – 312с.
2. Кекилбаев. А. Казахстан на стыке тысячелетий. – Алматы,
1999. – 94с.
3. Абдрасулов Е.Б. Роль суда биев в совершенствовании норм
обычного права. //www.supcourt.kz
4. Валиханов Ч. Записка о судебной реформе. Вступ. Ст.,
сост. И примеч. С.Ф. Ударцева – 2-е изд. Доп. И исправл. – Алматы: Жеты Жаргы,
2004. – 112 с.
5. Козыбаев М.К. Из истории государства и права Казахстана.
- Алматы,1996.- 180с.
6. Мами К. О становлении и развитии судебной власти. /К.
Мами. // www.supcourt.kz
7. Зиманов С. Казахский суд биев – общекультурологическая
ценность. – Алматы: Арыс, 2009 – 408 с.
8. Мами К. Развитие судов получит новый импульс. //
Заңгер. - 2004. - №2. - С. 3-5
9. Шмарин А.Г. Конституционно-правовые основы формирования
правового государства в Республике Казахстан. – Алматы, 2005. - 32 с.
10. О государственной программе правовой реформы в
Республике Казахстан от 12 февраля 1994 года: Постановление Президента. //
Информационная система «Параграф».
11. Мами, К. А. Конституционная законность и судебная власть
в Республике Казахстан: основные тенденции и приоритеты. М.: [б. и.], 2004. -
С. 128. // www.dissercat.com
12. Конституция Республики Казахстан от 30 августа 1995г. //
Информационная система «Параграф».
13. О судах и статусе судей в Республике Казахстан от 20
декабря 1995 года: Указ Президента Республики Казахстан имеющий силу
Конституционного закона. // Информационная система «Параграф».
14. О мерах по усилению независимости судебной системы
Республики Казахстан: Указ Президента Республики Казахстан от 1 сентября 2000г.
// Информационная система «Параграф»
15. Конституционный закон Республики Казахстан «О судебной
системе и статусе судей» от 25 декабря 2000 года № 132- II. // Информационная
16. О мерах по совершенствованию правоохранительной
деятельности в Республике Казахстан от 22 января 2001 г.: Указ Президента РК. // Информационная система «Параграф».
17. Концепция правовой политики Республики Казахстан на
период с 2010 до 2020 года. // Информационная система «Параграф».
Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011