Specialization of courts and its impact on further professionalization of judges in the Republic of Kazakhstan

Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012

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

The judiciary at the present stage of constitutional development in the Republic of Kazakhstan is based on the ideas of legal state, placing the emphasis on democratic principles of the judicial system's perspective development. One of such urgent tendency of development and reforming of the court system of Kazakhstan is the further course of the courts' specialization. These regulations are provided by the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020, which states that "the main thrust of the judicial system is a specialization of courts and judges..."

Specialization of courts at the world level develops dynamically, which proves the necessity of implementation and operation of such courts. Specialized courts are the special courts, within the competence of which it is to the consider certain categories of cases withdrawn from the competence of the general jurisdiction courts.

Paragraph 4 of art. 75 of the Constitution of the Republic of Kazakhstan prohibits establishment of the special and emergency courts establishment, under whatever name. At the same time, the analysis of section VII "Courts and Justice" of the Constitution of the Republic of Kazakhstan shows that the activities of the specialized courts are not banned, because there is no such provision for them. Therefore, solution to this issue is provided for by the constitutional laws. And, above all, the Constitutional Law "On the Judicial System and Status of Judges of the Republic of Kazakhstan" allows the creation of specialized courts, which must conform to requirements that provide the unity of the judicial system of the Republic.

Clarification of paragraph 4 of Art. 75 of the Constitution is given in the judgment of the Constitutional Council of the Republic of Kazakhstan on April 14, 2006, 1 "On the official interpretation of paragraph 4 of Article 75 of the Constitution of the Republic of Kazakhstan", which defines the characteristics of specialized courts, and clearly delineates the concept of "special courts" and "emergency courts". Unlike the special courts, specialized courts provided in paragraph 3 of article 3 of the Constitutional Law of Kazakhstan "On the Judicial System and Status of Judges of the Republic of Kazakhstan" are part of a single judicial system of the Republic of Kazakhstan [1].

The Constitutional Law "On the Judicial System and Status of Judges of the Republic of Kazakhstan" does not provide an exhaustive list of specialized courts that may be established in Kazakhstan. This fact indicates the opportunity for further development and improvement of the judicial system specialization in order to improve the administration of justice.

According to Dauletiyar A.Z. Kazakhstan currently has a number of specialized courts:

- Special military courts, the Military Court of the Republic of Kazakhstan and military courts of garrisons;

- Specialized Inter-district Economic Courts;

- Specialized Inter-district Administrative courts;

- Regional Financial Court of Almaty;

- Specialized Inter-district juvenile courts of Almaty and Astana;

- Specialized courts for criminal cases (established on January 1, 2010).

At present day, Kazakhstan plans further development of the juvenile justice system, including the establishment of juvenile courts in all regions of Kazakhstan, as well as the establishment of a specialized tax court.

In the matter of the further development of courts' specialization one of the fundamental factors is the continuity and gradual specialization with a clear organizational and legal basis, which, in turn, subsequently affect the quality of justice. The quality of justice depends on many factors ranging from recruitment to information and technical support.

Establishment of new specialized courts requires taking in account the huge international experience in this issue. Analysis of the constitutional and legal status of specialized courts in foreign countries provides the ability to apply an adequate adaptation of international experience in the judicial system of the Republic of Kazakhstan [2].

For example, in Germany there are administrative, financial, patent courts, which consider labor and social disputes, in the U.S. there are courts for cases of insolvency, drugs, tax, juvenile, labor, land courts, and others, in France - commercial, administrative, military, land courts, for social security and agricultural lease, etc.

The existence of the specialized courts' judicial system creates some concerns. There are fears that division of the judiciary can weaken it, and it will be not an easy task to distribute competences between the courts of different autonomous systems; courts of different types will be compete for priority in the judicial system. From our point of view, the creation of specialized courts promotes strengthening judicial system, because this allows relieving the general courts of some issues and ensuring qualified court procedures. Currently, the most pressing issues are the unity of law enforcement courts of different systems and the clear delineation of jurisdiction. All things of a certain category should be considered only by the court, which specializes in treating this type of case and, therefore, has the opportunity to consider them in the most qualified manner. Solving these problems is one of the primary tasks of the current stage of the judicial reform.

Application of rules of procedural and substantive law in the resolution of cases, different in their legal nature, requires of Judges a profound knowledge of the laws in all categories of cases. Legal framework in Kazakhstan is voluminous, moreover, in recent years, the existing laws introduced many changes, additions and amendments, affecting the legal basis for relations, which creates difficulties in enforcement.

The initial phase of specialization of the courts of Kazakhstan is connected with the creation of military courts. The history of the military courts in Kazakhstan dates back to 1992, when the Presidium's Decree of the Supreme Soviet of the Republic of Kazakhstan on January 20, 1992, acting on the territory of Kazakh SSR military tribunals were placed under the jurisdiction of the Republic of Kazakhstan. The system of military tribunals was established by the Resolution of the President of the Republic of Kazakhstan 1 802 of 11 June 1992 "On the military courts and the military prosecution authorities of Kazakhstan." Military courts of garrisons investigate criminal cases against soldiers and citizens working in military units and military command and address civil, administrative affairs of the garrison's territory, where one of the parties is military units, military authorities or military personnel [3].

One of the priorities of the judicial and legal reform in Kazakhstan was the formation of specialized economic and administrative courts. Previous history of their creation was the abolition of the structure of the district and equivalent administrative court judges, the authority of which was related to cases referred as the materials on administrative offenses to at that time.

By the Law of Kazakhstan of January 30, 2001 the administrative courts were established in all regional centers and major cities, which annually consider a great number of administrative cases, and therefore, greatly reduce the load on the judges of the courts of general jurisdiction.

The belief that the specialized administrative courts should only deal with the consideration of administrative cases, significantly limits the scope of the administrative justice. The effectiveness of the administrative court showed that their jurisdiction can also include considering cases arising from administrative legal relations that are currently considered by the general courts.

It should be noted that one of the most important steps in the specialization of the courts in Kazakhstan is the creation and functioning of the economic courts.

At a certain period of development of the judicial system of the country, after the elimination of arbitration courts the area of economic disputes did not receive a proper legal authorization. Economic disputes were essentially resolved by the courts of law at the level of each district. But it became clear that such a solution was not quite sufficient. No one diminishes the role of courts of general jurisdiction in the administration of justice, but it should be noted that they were not ready to efficiently and professionally resolve these disputes. It brought some confusion and elements of localism in the case law; businesses experienced insufficiency of local administrative office. In order to correct this imbalance in 2001 in Almaty and Karaganda experimental inter-district economic courts were established. These courts were established on the basis of Presidential Decree 1 535 as of 16.01.2001. Their successful work allowed establishing specialized interregional courts in other regional centers in 2002 [4].

Steady course for specialization courts in Kazakhstan continued intensively. Thus, the project was initiated by the President of Kazakhstan Nursultan Nazarbayev and envolved establishment of a Regional Financial Centre in Almaty (RFCA) and it was suggested in his speech at the Congress of Financiers of Kazakhstan in November 2004. The Decress of the Government of the Republic of Kazakhstan dated December 24, 2004 1 1364 approved the Concept of creation of international (regional) financial center in Almaty. This Concept initiated a focused work to create a financial center in the southern capital, similar to financial centers in Dubai, Dublin, Labuan, Singapore.

According the paragraph 2 of Article 3 of the Constitutional Law of Kazakhstan "On the Judicial System and Status of Judges of the Republic of Kazakhstan" specialized courts may be established in the status equal to regional courts, which also follows from the decision of the Constitutional Council as of April 14, 2006 "On the official interpretation of paragraph 4 of article 75 of the Constitution of the Republic of Kazakhstan. " On June 5, 2006, the Law "On regional financial center of Almaty city" was passed, Article 9 of which states that disputes between members of the financial center are considered by the specialized financial court in accordance with the laws of the Republic of Kazakhstan. Since this law defines the legal status of the participants of the Regional Financial Center of Almaty, which is assigned to management of the public agency, directly responsible and accountable to the President of the Republic of Kazakhstan, Article 11 of mentioned Act provides that members of the financial center are professional participants of the equity market, those involved in the brokering and (or) dealer activities and have:

1) The certificate of state on registration (re-registration) of a legal entity, issued by the authorized body;

2) A license to operate in the equity market issued by the authorized state body for regulation and supervision of the financial market and financial organizations.

In this regard, the Law of the Republic of Kazakhstan dated June 5, 2006 "On amendments and additions to some legislative acts of the Republic of Kazakhstan on the establishment of the Regional Financial Center of Almaty", article 28 of the Civil Procedure Code of the Republic of Kazakhstan, devoted to issues of jurisdiction of civil cases, and equivalent to them regional courts was amended with a provision that a specialized financial court should consider the cases concerning appealing of the parties the Regional Financial center of Almaty of officials and bodies RFCA' actions (inaction), and other civil cases, if one of the parties is a member of the Regional Financial Center of Almaty [5].

The cooperation work and technical assistance to financial court continues. Special training program for judges and court staff are aimed at studying the experience of similar international institutions in Malaysia, the United Arab Emirates and some other countries.

We would like to note that the uniqueness of this court is that it is of equal status with the Regional Court, but is to consider civil disputes of RFCA participants as the trial court, accordingly, appellate instance for this court is the Supreme Court. Thus, the main result is achieved - the maximum summary judgment for the participants of the RFCA. Any investor who may wish to register with RFCA will initially be aware that in case of a dispute, it will be resolved by the soon, affordable and competent court.

The next phase of courts' specialization is connected with the courts, which in one way or another; consider the interests of the minors. All countries around the world make an strong emphasis on developing a definition of minors and designing a mechanisms to protect them. On July 8, 1994 Kazakhstan ratified the Convention of the Rights of the Child adopted on November 20, 1989 by a resolution of the UN General Assembly. According to article 44 of the Convention, member states are encouraged to submit reports on the measures taken to secure the rights recognized in the Convention and on the progress made in the implementation of these rights. The initial report of Kazakhstan to the Convention of the Rights of the Child was discussed by the International Committee of the Rights of the Child, on June 4-6, 2003 [6].

In this regard, the question of active development of specialized juvenile courts in Kazakhstan is very relevant today.

For the first time in the world history, "children's court" was established in 1899 in the United States. These courts considered cases involving crimes committed by minors, the cases of crimes in which the victim is a minor, the cases related to the failure of duties of the minor's parents etc.

It should be noted that the specialization of judges who consider cases addressing the interests of minors will improve the quality of justice in these cases, will accelerate the adoption of decisions on them to restore the violated rights of the child, which is very important for juveniles. Furthermore, the establishment of specialized juvenile courts will match the development of children's rights enshrined in these international acts [7].

Today the Institute of juvenile courts is relatively new in Kazakhstan. In accordance with the Presidential Decree "On the formation of specialized juvenile courts" as of August 23, 2007, inter-regional specialized juvenile courts (juvenile courts) have been established as pilot projects in the cities of Astana and Almaty.

Thus it should be noted that juvenile justice should not be punitive, but recovery, as well as contributing to the minors' taking responsibility in order to correct damages caused by their actions. Thus, the purpose of the juvenile court is to be rather the correction than punishment of juvenile offenders, the means of determining main causes of offensive behavior [8].

Along with the existing specialized court's jurisdiction, there is an urgent issue of formation and development of environmental courts.

As noted by Alenov M.A., the main criterion for inclusion of litigation to the category of environmental standards should be an appointment of the norm that justifies the stated requirements. Indemnification for environmental damage should be referred to such cases, and no matter who caused the damage and who was subjected to damage. Even the state can be sued and there should not be any exceptions. Functioning of the special ecological jurisdiction's courts will provide an opportunity to receive systematic information for a detailed compilation and preparation of the regulatory decisions of the Supreme Court in the sphere of environmental law application. The operation of such courts can become a legal barrier for violators of environmental laws, who often manage to escape responsibility [9].

This study allows us to draw some conclusions about the impact of courts' specialization on the professional activities of judges in Kazakhstan. In indicated areas of the courts' specialization in the Republic of Kazakhstan, positive tendencies are traced in the development and improvement of professional level of judges, which is projected directly to the quality of justice.

The judicial system of the Republic of Kazakhstan, in the absence of specialized court's jurisdiction overloaded the courts of general jurisdiction with cases of different nature, which naturally affected the level of decisions handed down by judges. Judges often encountered certain difficulties in the resolution of cases of a specific nature, as the knowledge and skills in narrow fields of individual subjects were required. In general, courts specialization in RK "unloaded" the courts of general jurisdiction, and significantly increased the level of decisions made by the judges of such courts. Summarizing everything mentioned above it should be noted that the further professionalization of judges is in close relationship with the specialization of the judicial system of Kazakhstan.

REFERENCES

1. Decision of the Constitutional Council of the Republic of Kazakhstan on April 14, 2006, 1 1 "On the official interpretation of paragraph 4 of Article 75 of the Constitution of the Republic of Kazakhstan." / / Information System "Paragraph."

2. Dauletiyar A.Z., Organizational and legal aspects of the system of specialized courts in the Republic of Kazakhstan. / / World of Law, 2010. - 1 10. - Pp.30-32.

3. Karamanov B. Stages of Development (specialized military court). // Sanger, 2006. - 1 5. - P. 10-11.

4. Dzhanysbaeva T.Z. The main tendencies of Administrative Justice of the Republic of Kazakhstan. / / Sanger, 2009. - 1 12. - P.56-57.

5. Zhailganova A. On the advantages and prospects of specialized financial court. // www.supcourt.kz

6. Yurchenko, R. The development of specialized courts in Kazakhstan. // Sanger, 2006. - 1 2. - P.10-13.

7. Adilova G.D. Juvenile justice. // World of Law, 2008. - 1 6. - P.28 -29.

8. Amirova B. Juvenile Justice: Past and Present. // Sanger, 2005. - 1 5. P.46-49.

9. Alenov M.A. The convenience of specialized environmental courts. / / Legal Reform in Kazakhstan, 2008. - 1 1 (41). - P.64-66.



Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012

  
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