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to the consider certain categories of cases withdrawn from the competence of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 .
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
- 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,
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 .
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
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
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
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 .
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 .
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 .
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 .
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
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 .
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.
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.
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). -
Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012