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 tribes.

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, etc.

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 norms [3].

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 [6].

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 their interaction.

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 [10].

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) [11].

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 [12].

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 [13].

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 Committee [14].

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 [15].

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 Administration Committee.

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 [16].

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 cases.

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 [17].

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 acts.

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

  
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