national report on the state of judiciary in the republic of...
TRANSCRIPT
HIGH JUDICIAL COUNCIL
OF THE REPUBLIC OF KAZAKHSTAN
NATIONAL REPORT ON THE STATE OF
JUDICIARY IN THE REPUBLIC OF
KAZAKHSTAN
Nur-Sultan
2019
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CONTENTS:
INTRODUCTION
CHAPTER 1. Current state of the judiciary and trends
1.1. Judiciary of district courts and courts equivalent to them
1.2. Judiciary of regional courts and courts equivalent to them
1.3. Supreme Court Judges
CHAPTER 2. High Judicial Council as an institutional basis for the
system of selection and promotion of judges and the stages of its
development
CHAPTER 3. Training of judges
3.1. Internship of judicial candidates
3.2. Training at the Academy of Justice and further training of
judges
CHAPTER 4. Selection and promotion of judges
4.1. Qualifying exam for a judicial position
4.2. Competitive selection of judges
4.3. Career promotion of judges and the state of the personnel
reserve for judicial positions
CHAPTER 5. Professional assessment of judges
CHAPTER 6. Responsibility of judges
CHAPTER 7. Dismissal of judges
CHAPTER 8. International cooperation
CONCLUSION
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“We need to ensure professional development and
renewal of the judiciary and create incentives to
encourage the best lawyers to become judges”
N.A. Nazarbayev
Address to the Nation of Kazakhstan “The growth of
the welfare of Kazakhstan: an increase in income and
quality of life”, October 5, 2018
INTRODUCTION
A fair and authoritative judiciary is an essential attribute of a modern
legal state.
Nursultan Nazarbayev, President of the Republic of Kazakhstan,
as the founder of modern Kazakhstan, has been paying special attention
to the judicial system from the first days of our country's independence.
Thanks to this and as a result of systemic reforms initiated by the
Head of State aimed at ensuring the supremacy of law, the quality of
justice administration is improving, the degree of satisfaction with justice
and the work of the courts is increasing, which directly influences the
positions of Kazakhstan in the relevant international rankings.
In particular, in terms of judicial independence of the Global
Competitiveness Index (140 countries), in 2018 Kazakhstan moved up
six places – from 79th to 73th position. By the Rule of Law Index (113 countries), as of the end of 2018,
Kazakhstan climbed nine places – from 73th to 64th position.
The judicial system, being a branch of state power, has a direct impact
on the level of public confidence in state power.
The efficiency of courts influences the legitimacy and rule of law in
the country, the authority of the state as a whole, the investment
attractiveness and the image of the country.
Considering these important facts, the issues of the judicial system,
including the selection of judges are reflected in a number of state
programs and strategic documents, and the formation of a strong and
reliable judiciary is one of the priorities of the state policy.
For example, Nation Plan “100 concrete steps to implement five
institutional reforms” toughens qualification requirements and
mechanisms for the selection of candidates for judicial positions.
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The goals on ensuring the rule of law and justice, bringing the judicial
system in line with international standards are provided for in the
Kazakhstan Strategic Development Plan 2025.
Moreover, the quality of justice is most affected by such systemic
factors as:
1) professionalism and integrity of judges;
2) level of social and legal guarantees ensuring independence of
judges;
3) justice administration and procedural workload on judges;
4) transparency and accessibility of the judicial system.
The main role in the functioning of an effective and fair judicial
system belongs to the judges, who must possess high professional and
moral qualities.
In this regard, the main objective of this National Report is to
comprehensively inform the Head of State and the public of
Kazakhstan about the state of the country's judiciary, problems in the area
and ways to solve them, as well as prospects for improving the system of
selection and promotion of judges and the activities of the High Judicial
Council.
The legal basis for the first National Report is Article 3 of the Law
“On the High Judicial Council of the Republic of Kazakhstan”.
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Chapter 1. Current state of the judiciary and trends
As of the beginning of 2019, the country´s judiciary is reported to
account for 2,684 judges, and the number of judges actually performing
their duties is 2,442; 242 positions are currently vacant.
Court cases are heard in courts of three instances (courts of first
instance, appellate courts and courts of cassation); as a result, there are
three following levels of courts:
1) district courts and courts equivalent to them (2,161 judges);
2) regional courts and courts equivalent to them (458 judges);
3) the Supreme Court (65 judges).
The number of judges, by region, is as follows:
Karaganda region – 280 judges;
Almaty city – 272 judges;
East Kazakhstan region – 250 judges;
Astana city – 189 judges;
Kostanay region – 179 judges;
Almaty region – 174 judges;
Pavlodar region – 166 judges;
Aktobe region – 128 judges;
Akmola region – 123 judges;
Zhambyl region – 122 judges;
North Kazakhstan region – 116 judges;
Turkestan region – 114 judges;
West Kazakhstan region – 111 judges;
Shymkent city – 97 judges;
Atyrau region – 89 judges;
Kyzylorda region – 84 judges;
Mangystau region – 83 judges;
Military courts – 42 judges.
Thus, the largest number of judges is seen in the largest regions with a high population density and, accordingly, a large caseload. This
means that the number of judges in the regions is determined by the
workload of judges, the population and other relevant factors.
At the same time, the number of judges in regions and courts within
regions does not remain stable, and changes taking into account the above
mentioned factors.
The redistribution of the judiciary number over courts or regions is
carried out by the Supreme Court in consultation with the High Judicial
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Council, which provides an expert assessment of the need and feasibility
of such changes.
.
The information given above also shows that district courts are the
core of the country’s judicial system. It is these courts that mainly
interact with citizens and organizations and determine the modern look of
the judicial system. Based mainly on the results of their work, public
opinion is formed on the courts, the quality of justice, and the judiciary as
a whole.
In this regard, the main priority of the HJC is the formation of a
highly professional judiciary at the district level.
There are much fewer regional court judges with higher
qualifications, more judicial experience and hearing more complex cases.
However, it is they who have a decisive influence on the professional
development and civic stand of district judges.
The most professional judges of the country are in the Supreme
Court, which makes final decisions and determines the unified court
practice. Being the Supreme Court judge is the highest achievement for
any judge.
1.1. Judiciary of district courts and courts equivalent to them
As of January 1, 2019, there are 376 district courts and courts
equivalent to them in Kazakhstan, including: 27 administrative courts,
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18 inter-district criminal courts (including a military criminal court), 17
inter-district economic courts, 10 garrison military courts, 20 inter-district
juvenile courts, 17 examining courts, as well as 267 district courts.
The staff number of district court judges and courts equivalent to
them is 2,161 (in 2017 – 2,143). In 2018, the number of district judges
increased by 18, due to the transformation of South Kazakhstan region
into Turkestan region, as well as giving Shymkent the status of a city of
state importance.
Of the total number of district judges, 376 (17.4%) are chairmen of
such courts and 1,785 (82.6%) are judges.
The actual number of district judges and specialized courts is 1,947
(in 2017 – 1,986).
Of the total number of district judges and courts equivalent to them,
215 are judges of economic courts, 63 – of criminal courts, 135 – of
administrative courts, 46 – of examining courts, 51 – of juvenile courts,
411 – of civil jurisdiction courts, 159 – of criminal jurisdiction courts, 867
– of general jurisdiction courts.
There are 214 vacant judicial positions (185 of them are of district
court judges and courts equivalent to them, 29 – of chairmen of such
courts), 152 of which have been publicly announced (125 of them – for
positions of district court judges and courts equivalent to them, and 27 –
for positions of chairmen of such courts).
As of the end of 2017, there were 157 vacancies of judges (133 of
them were district court judges and courts equivalent to them; 24 –
chairmen of such courts).
As for the number of judges, the largest number of district judges is
seen in Karaganda region (232, or 10.7% of the total number), Almaty
city (215, or 10%), East Kazakhstan region (208, or 9.6%).
The smallest number of judges is in Mangystau region (69, or 3.2%)
and Kyzylorda region (70, or 3.2%).
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In terms of gender, out of the total number of district judges, 988
(50.7%) are men, 959 (49.3%) – women.
In 2017, the number of men accounted for 1048 (52.8%), women –
938 (47.2%).
Thus, in general, we can see sustainable gender equality in the
judiciary at the district level.
The number of district court judges of Kazakhstan, by age, is as
follows:
aged 30-40 years – 739 judges (38%), in 2017 – 832 judges (41.9%);
aged 41-50 years – 793 judges (40.7%), in 2017 – 756 judges
(38.1%);
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aged over 50 years – 415 judges (21.8%), in 2017 – 398 judges
(20%).
Thus, the age of most district court judges ranges from 41 to 50 years
(in 2017 – from 31 to 40 years).
As of December 31, 2018, 8 judges who reached retirement age
worked in district courts (in 2017 – 1 judge), of whom the powers of 8
judges were extended until they would reach the age limit.
The average age of district court chairmen is 47 years, with an
average judicial experience of 14 years (in 2017, the average age was 45
years, with an average judicial experience of 13 years).
The average age of district judges is 43 years, with an average judicial
experience of 8 years (in 2017, the average age was 41 years, with an
average judicial experience of 7 years).
Thus, the average age and the average judicial experience of judges
of the district level increased slightly in 2018 in comparison with 2017.
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Of the total number of district judges, 29 judges (1.5%) have judicial
experience of less than one year; in 2017, this figure accounted for 114
judges (5.7%);
1-5 years – 825 (42.4%), in 2017 – 830 (41.8%);
6-10 years – 330 (17%), in 2017 – 347 (17.4%);
11-15 years – 394 (20.2%), in 2017 – 420 (21.2%);
16-20 years – 197 (10.1%), in 2017 – 128 (6.4%);
over 20 years – 172 (8.8%), in 2017 – 147 (7.4%).
The analysis shows that the majority of district judges, as in 2017,
have judicial experience of 2-5 years. This is due to an increase in the total
number of district judges by 450 judges in 2014, as a result of which there
was a one-time influx of a large number of young professionals.
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Nationality. The majority of district judges are Kazakhs – 1,842
(94.6%), followed by Russians – 60 (3.1%), Ukrainians – 14 (0.7%),
Tatars – 10 (0.5%), Koreans – 3 (0.2%), Uzbeks – 4 (0.2%), other
nationalities (Uygurs, Chechens, Azeris, Belarusians, Germans and
others) – 14 (0.7%).
Educational level of district judges
Twenty-six district judges have academic degrees and academic titles
(in 2017 – 32), including:
1) Doctor of Law – 1;
2) Phd – 3;
3) Candidate of Juridical Sciences – 19;
4) Candidate of Philological Sciences – 2;
5) Candidate of Economic Sciences – 1.
Of the total number of district judges, 258 (13.3%) are graduates of
the Academy of Justice. In addition, 77 judges have a Master’s degree in
Law, and 11 – in Economics.
Out of the total number of judges, 48 judges (2.5%) received a higher
education in Law, Economics and Finance abroad, including 10 judges
who received Bolashak scholarships.
Eleven judges completed further training courses abroad.
Of the total number of district judges, 21 judges (in 2017 – 27) are
currently getting their Master’s degree in Law.
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Two hundred and twenty-nine judges have an additional (second)
higher education (in 2017 – 222).
Seventy-nine judges (4.1%) are fluent in foreign languages, 69 of
them – in English.
One hundred and forty-six district judges have state awards, of
whom one was awarded «Qurmet» (Honour) medal. In addition, 145
judges were awarded jubilee medals.
Sixty-six judges were given departmental awards, of whom 29 judges
were awarded «Mіnsіz qyzmetі úshіn» medal (For irreproachable
services), 6 – «Sot júıesіnіń ardagerі» medal (Veteran of the judiciary)
and 31 – «Sot júıesіnіń úzdіgі» (For outstanding achievements).
The «Úsh Bi» (Three Judges) honorary badge of the Union of Judges
was awarded to 27 judges.
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1.2. Judiciary of regional courts and courts equivalent to them
As of January 1, 2019, there are 18 regional courts and courts
equivalent to them in Kazakhstan.
The staffing number of regional court judges and courts equivalent
to them is 458 (in 2017 – 456).
Of the total number of regional judges, 18 (4%) are chairmen of these
courts, 36 (8%) are chairmen of regional court judicial boards, and 404
(88%) are judges of such courts.
The actual number of regional court judges is 436 judges (in 2017
– 438).
Of the total number of regional court judges, 296 are judges of the
judicial board on civil cases (administrative cases are under their
jurisdiction as well), 122 – judges of the judicial board on criminal cases
of regional courts.
The number of vacant judicial positions in regional courts is 22 (1 of
them is the chairman of the regional court judicial board, 21 – of regional
court judges), 21 of which were publicly announced (21 of them to fill
positions of the regional court judges).
As of the end of 2017, the number of vacant judicial positions was 18
(all – for the position of regional court judges).
The largest number of regional court judges is seen in Karaganda
regional court (48, or 10.5% of the total number), the court of Almaty (57,
or 12.5%) and East Kazakhstan regional court (42, or 9.2%).
The smallest number of regional court judges is in Mangystau
regional court (14, or 3.1%), Kyzylorda regional court (14, or 3.1%).
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In terms of gender, out of the total number of regional court judges,
237 (54.4%) are men, 199 (45.6%) – women.
In 2017, the number of men was 237 (54.1%), women – 201 (45.9%).
The number of regional court judges, by age, is as follows:
aged 31-40 years – 13 judges (3%), in 2017 – 40 judges (9.1%);
aged 41-50 years – 151 judges (34.6%), in 2017 – 152 judges
(34.7%);
aged over 50 years – 272 judges (62.4%), in 2017 – 246 judges
(56.2%).
Thus, the majority of regional court judges, as in 2017, are over 50
years old.
As of December 31, 2018, there were 6 regional court judges (in 2017
– 5) who have reached retirement age, of whom the powers of 5 judges
were extended until they would reach the age limit (in 2017 – 4).
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The average age of regional court judges is 50 years, with an average
judicial experience of 20 yeas (in 2017 – 48 years, with an average
judicial experience of 19 years).
Thus, the average age and judicial experience of regional court judges
increased in 2018 in comparison with 2017.
Currently, regional court judges have the following amount of
judicial experience:
6-10 years – 11 (2.5%), in 2017 – 32 (7.3%);
11-15 years – 95 (21.8%), in 2017 – 109 (24.9%);
16-20 years – 116 (26.6%), in 2017 – 113 (25.8%);
over 20 years – 214 (49.1%), in 2017 – 184 (42%).
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The analysis shows that the majority of regional court judges, as
before, have judicial experience of over 20 years.
Nationality. The majority of regional court judges are Kazakhs – 390
(89.4%), followed Russians – 23 (5.3%), Ukrainians – 2 (0.5%), Tatars –
5 (1.2%), Koreans – 3 (0.7%), Uzbeks – 1 (0.2%), other nationalities
(Uygurs, Chechens, Azeris, Belarusians, Germans and others) – 12
(2.7%).
Educational level of regional judges
Twenty-three regional court judges have academic degrees and
academic titles (in 2017 – 23), including:
1) Doctor of Law – 2;
2) Candidate of Juridical Sciences – 19;
3) Candidate of Economic Sciences – 2.
Of the total number of regional judges, 5 (1.2%) are graduates of the
Academy of Justice. In addition, 9 judges have a Master's degree in Law
and 3 judges – in Economics.
Of the total number of regional court judges, 30 judges (6.9%)
received a higher education in Law, Economics and Finance abroad,
including 3 «Bolashak» scholarship holders.
Four judges completed further training courses abroad.
Of the total number of regional court judges, 2 judges (in 2017 – 5)
are currently getting their Master’s degree in Law.
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Thirty-two judges have an additional (second) higher education (in
2017 – 30).
Eleven judges (2.5%) are fluent in foreign languages, 8 of them – in
English.
Thirteen regional court judges have state awards, of whom 5 were
awarded «Qurmet» (Honour) medal, 8 judges – «Eren eńbegі úshіn» (For
excellent work results) medal. In addition, 254 judges were awarded
jubilee medals.
Two hundred and fifty-nine judges were given departmental awards,
of whom 163 judges – «Mіnsіz qyzmetі úshіn» medal (For irreproachable
services), 10 – «Sot júıesіnіń ardagerі» medal (Veteran of the judiciary),
57 – «Sot júıesіnіń úzdіgі» (For outstanding achievements); three judges
were declared as honoured judges.
One hundred and thirty-seven judges were awarded «Úsh bi» (Three
Judges) badge of honor of the Union of Judges.
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1.3. Supreme Court Judges
As of January 1, 2019, the number of the Supreme Court judges
accounts for 65 (in 2017 – 65 judges as well), 6 judicial positions are
vacant.
Until 2016, the number of the Supreme Court judges was 33. Then,
as the Supreme Court was given the authority of the cassation instance
and the volume of the cases increased, the number of judges almost
doubled, to 65 judges. Additional Supreme court judges were elected from
among the most experienced and qualified regional court judges.
Of the total number of the Supreme Court judges, 33 judges are of
the judicial board on civil cases, 18 – on criminal cases, 7 – specialized
board (administrative cases and investment disputes are heard here) of the
Supreme Court.
In terms of gender, of the total number of judges, 32 (54.2%) are men
and 27 (45.8%) – women.
In 2017, the number of men – 38 (58.5%), women – 27 (41.5%).
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The number of the judiciary, by age, is as follows:
aged 41-50 years – 14 judges (23.7%), in 2017 – 16 judges (24.6%);
aged over 50 years – 45 judges (76.3%), in 2017 – 49 judges (75.4%);
total number of women aged 55-62 years old – 4 (6.8%), in 2017 – 3
(4.6%);
total number of men aged 60-64 years old – 8 (13.6%), in 2017 – 9
(13.9%).
Thus, the majority of the Supreme Court judges are over 50 years old.
As of December 31, 2018, there was 1 judge in the Supreme Court
who reached the retirement age, whose powers were extended till he
would reach the age limit (in 2017 – 5).
The average age of the Supreme Court judges is 52 years, with an
average work experience in the legal sphere of 30 years and an average
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judicial experience of 21 years (in 2017, 53 years, 32 years and 22 years
respectively).
Of the total number of the Supreme Court judges, the amount of
judicial experience is as follows:
1) up to 2 years – only one judge who is currently the Supreme court
chairman;
2) 10-15 years – 3 (5.1%), in 2017 – 4 (6.2%);
3) 15-18 years old – 7 (11.9%), in 2017 – 6 (9.2%);
4) 18-20 years – 2 (3.4%), in 2017 – 11 (16.9%);
5) over 20 years – 46 (77.9%), in 2017 – 43 (66.2%).
The analysis shows that the majority of the Supreme Court judges, as
in 2017, have judicial experience of over 20 years.
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Nationality. The majority of the Supreme Court judges are Kazakhs
– 49 (83%), followed by Russians – 6 (10.2%), Tatars – 2 (3.4%), Poles
– 1 (1.7%), Ukrainians – 1 (1.7%).
Educational level of Supreme Court judges
Academic degrees, academic titles are held by 10 Supreme Court
judges (in 2017 – 11), including:
1) Doctor of Law – 1;
2) Candidate of Juridical Sciences – 9.
Two judges (3.4%) are fluent in foreign languages (English).
Among the Supreme Court judges, 17 people were given state
awards, including «Dank» (Glory) order of the II degree – 2 judges,
«Qurmet» (Honour) order – 12 judges, «Eren eńbegі úshіn» (For excellent
work results) medal – 3 judges.
The Supreme Court judges were also awarded 143 jubilee medals.
In addition, «Mіnsіz qyzmetі úshіn» medal (For irreproachable
services) departmental medal was given to 47 judges; «Sot júıesіnіń
ardagerі» medal (Veteran of the judiciary) – to 8 judges; eight judges were
declared as honoured judges.
Forty-two judges were awarded «Úsh bi» (Three judges) badge of
honor of the Union of Judges.
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Chapter 2. High Judicial Council as an institutional basis for the
system of selection and promotion of judges and the stages of its
development The High Judicial Council is a constitutional body, the main purpose
of which is to ensure the implementation of the constitutional powers
of the Head of State to form courts, to guarantee the independence of
judges and their inviolability.
The HJC formation and development as a state institution consists of
several successive stages that are directly related to the stages of the state
development.
The first stage (1995-2007) – the HJC had the status of a consultative
and advisory body under the President of the Republic of Kazakhstan.
At first, the Council was for a short time headed directly by the Head
of State, and after constitutional amendments, from 1998, was headed by
the Council chairman and consisted of the heads of the Constitutional
Council, Supreme Court, Prosecutor General, Minister of Justice, Senate
deputies, judges and other persons appointed by the President.
During that time, the following issues were within the competence of
the Council:
1) guaranteeing independence of judges;
2) competitive selection of regional court judges, as well as
consideration of candidates presented by the Supreme Court chairman for
the positions of chairmen and chairmen of regional court judicial boards,
judges and chairmen of the Supreme Court judicial boards, and the
making relevant recommendations to the Head of State afterwards;
3) dismissal of chairmen, judicial board chairmen and regional court
and the Supreme Court judges.
The second stage (2007-2014) – the HJC got the status of an
institution without a status of a legal entity, consisting of the chairman
and other persons appointed by the Head of State.
During that period, the Council’s powers expanded markedly, since
the following issues were transferred to its competence after the abolition
of the Qualification Board of Justice:
1) competitive selection of district court judges, as well as
consideration of candidates submitted by the Supreme Court chairman for
the positions of district court chairmen and making appropriate
recommendations to the Head of State;
2) dismissal district court chairmen and judges;
3) organization of holding the qualifying examination for candidates;
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4) giving permission to the extension of powers of judges who have
reached the retirement age or age limit.
The third stage (2015-2017) – in the framework of the
implementation of reforms envisaged by Nation Plan, the Council was
transformed into an autonomous state institution with the status of a legal
entity.
The HJC, in addition to those it had, received the following additional
powers:
1) on competitive selection of district court chairmen;
2) on approving the results of the evaluation of the work of the judge
following the results of one year;
3) on consideration of complaints of judges against decisions of the
Commissions of the Trial Jury (the body that examines issues of
disciplinary responsibility of judges and carries out professional
evaluation of judges).
Along with this, following the legislative changes, the HJC started to
be half composed of the judges.
In addition, the Supreme Court chairman, the Prosecutor General, the
Minister of Justice, the Head of the Agency for Civil Service Affairs, the
chairmen of the relevant committees of the Majilis and the Senate of the
Parliament, were included in the HJC, and to ensure the participation of
the legal community – a representative of the lawyer community and a
legal scholar.
The fourth stage (from 2018 to the present) in accordance with the
Nation Plan and the Kazakhstan Strategic Development Plan 2025, the
work on the HJC institutional strengthening and the modernization of the
judges selection system is to continue.
During 2018, work on the transformation of the judges selection
system was carried out in two directions.
The first is to ensure complete implementation of Nation Plan within
the framework of the existing legal system.
The second is further systemic reform, based primarily on the
correction of the legislative foundations of the judicial system formation
and functioning.
The work under the first phase was carried out during 2018. It was
largely based on existing High Judicial Council functionality.
Further work in this direction was connected with the correction of
existing laws, and therefore in order to implement presidential directives,
a set of additional measures, including regulatory and legal measures to
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improve the activities of the Council itself and the entire judges selection
system was developed and implemented.
As a result, the following issues have been added to the powers of the
Council this year:
1) on formation of personnel reserve for judicial positions;
2) on disciplinary responsibility of judges;
3) on holding competitive selection of chairmen of regional court
judicial boards.
In addition, the composition of the Council has changed in terms of
representation of judicial community, and retired judges were excluded
from it. Also currently, at least half of the HJC is made up by judges
currently working.
In order to ensure the necessary continuity in the Council’s work and
preserve knowledge, a rotational procedure has been introduced to replace
half of the Council’s elected members every 1.5 years.
The Council’s staff is being strengthened, and its structure is being
improved.
Currently, the Council is taking necessary measures for the
qualitative and timely development of a new functionality. This work is
carried out in close cooperation with the judicial community.
Chapter 3. Training of judges
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3.1. Internship of judicial candidates
The Constitutional Law “On Judicial System and Status of Judges of
the Republic of Kazakhstan” and the Law “On High Judicial Council of
the Republic of Kazakhstan” established basic requirements for judicial
candidates.
A citizen of Kazakhstan can become a judge if he/she:
1) reached the age of thirty years;
2) has a higher legal education, high moral and ethical qualities, as
well as an impeccable reputation;
3) has at least 5 years of work experience in legal profession;
4) has completed all the necessary training.
The law provides for two ways of training.
The first is a one-year internship in courts.
The second is a two-year postgraduate course at the Academy of
Justice under the Supreme Court.
If the internship or training at the Academy of Justice is successfully
completed, candidates are eligible to participate in competitions for
judicial positions announced by the Council.
Internships in courts are carried out in order for candidates to:
1) study specifics of work in courts and acquire necessary practical
knowledge and skills of justice delivery;
2) assess business, professional, and moral qualities of candidate
interns and determine their prospects as judges.
Since 2016, internship has been carried out full-time on an ongoing
basis. In this case, the intern is paid salary in the amount of 70% of the
salary of a district court judge with a work experience of up to 1 year.
The total duration of the internship is now one year, of which eleven
months are in a district court, and one month is in a regional court.
The results of the internship are approved at the plenary session of
the regional court and are valid for 4 years.
In 2018, 50 people successfully completed internships in courts (in
2017 – 95, and in 2016 – 79). As of the beginning of 2019, there are 26
interns in courts (they began the internship in 2018 and will finish it in
2019).
Out of 50 people, the majority of interns are having their internship
in East Kazakhstan region (9), Almaty region (8) and Turkestan region
(7), that is, the largest regions of the country with a large number of local
courts.
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2016 2017 2018
n/n Regions
1. Astana city 4 6 5
2. Almaty city 14 30 2
3. Almaty region 3 1 8
4. Akmola region 2 1 1
5. Aktobe region 1 1
6. Atyrau region 1 2
7. East Kazakhstan region 8 9
8. Zhambyl region 8 5 2
9. West Kazakhstan region 5 4 1
10. Karagandy region 6 9 3
11. Kostanay region 1 2 4
12. Kyzylorda region 4 7 3
13. Mangystau region 2 2
14. Pavlodar region 4 5 1
15. North Kazakhstan region 1 1 1
16. Turkestan region 25 12 7
TOTAL: 79 95 50
As practice has shown, 50% of interns are the judicial system
employees.
Analysis of the internship practice shows that the toughening of
requirements for interns and the introduction of full-time internship lead
to an increase in quality, and at the same time to a decrease in the number
of interns. For example, in 2015 (when internships were part-time and
interns could combine it with their main employment), 201 candidates
completed the internship, while in 2018 the number accounted for 50
people.
To update the internship procedure and increase the pool of interns in
the current year, it is planned to introduce differentiated internship
periods, which will be set taking into account the intern’s professional
experience and legal experience. This will shorten internship periods for
experienced legal practitioners and ensure their greater influx into the
judicial system.
Analysis of the internship practice also shows the need to further
improve the quality of internship in courts. To this end, the Supreme
Court, with the participation of the HJC, develops the necessary measures,
including involving the Academy of Justice in training interns and
evaluating internship results.
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3.2. Training at the Academy of Justice and further training of
judges
Training at the Academy of Justice is an important way of judicial
training. Those trained at the Academy of Justice are exempt from the
exam at the Qualification Commission of the Council and from
internships in courts.
During the course, trainees undergo both theoretical training and
practical internship in courts (27.5 weeks).
Training at the Academy of Justice lasts 2 years, and the results are
valid during 4 years.
In 2018, 121 trainees studied at the Academy of Justice, 60 of them
– in the 1st year, 56 people – in the 2nd year.
A total of 62 people graduated from the Academy of Justice in
2018 (in 2017 – 53, in 2016 – 57).
At the same time, as practice shows, there is high need for the
Academy of Justice to fully realize its potential, since at present not all
of its graduates later become judges.
To solve this problem, those entering the Academy of Justice are
obliged to participate in the competition for judicial positions after their
graduation. Such an obligation, together with modernization measures of
the Academy itself, will minimize the cases of undergraduates being
unwilling to work as judges after their graduation.
In addition, in accordance with the amended legislation, graduates of
the Academy of Justice are given the opportunity to be appointed to the
courts out of competition. This will make it possible to use the potential
of graduates, who were trained at public expense, for the sake of judicial
system.
Regarding future prospects, there is a need to determine a model of
the Academy of Justice’s further development as the main organization
responsible for judicial training and raising qualifications.
It is worth noting that the Academy of Justice is currently taking
measures aimed at:
1) improving the education quality;
2)ensuring the most practice-oriented nature of the learning process.
For example, there is a scientific research institute on the issues of
justice and innovative projects in the Academy, and a project office is
currently operating there. These departments carry out research work on
topical issues of the justice system’s functioning.
28
Improving judges’ qualifications is one of the conditions required for
the increase in their professional level and a factor contributing to the
improvement of the justice delivery quality.
Further training is carried out throughout the judge’s entire
professional life and is held no more than once every three years.
Currently, it is carried out using the following mechanisms:
1) further training courses at the Academy of Justice under the
Supreme Court;
2) further training in training centers, including through:
– educational activities (seminars, conferences, round tables,
trainings, etc.);
– organization of mentoring and implementation of judicial
mentoring programs.
In 2018, the Academy of Justice conducted a total of 14 training
courses for district judges specializing in civil or criminal cases, judges
of specialized courts (criminal, examining, administrative, economic,
juvenile), district court chairmen, as well as regional court judges courts
on issues related to the application of substantive and procedural law
when hearing various types of cases.
A total of 495 judges completed training in 2018, including 57
chairmen and 438 judges. Last year, training centers held more than 1,300 trainings (seminars,
round tables, trainings) participated by judges and representatives of
interested state bodies on issues related to the practice of the application
of substantive and procedural law.
In addition, every regional court approved a group of mentors from
among the most experienced regional and district court judges.
Mentoring is established over a judge, first appointed to a position,
for a period of one to two years, taking into account the previous work
experience in the legal profession and level of professional training.
In the past year, 118 young judges were covered by a mentoring
program.
In general, practice shows that in order to increase judges’
professionalism and improve justice delivery quality, the further training
system must be strengthened and constantly improved.
29
Chapter 4. Selection and promotion of judges
4.1. Qualifying exam for a judicial position
As noted previously, future judges training is carried out during the
internship in courts or during training at the Academy of Justice.
However, these steps are components of a highly specialized training
system, directly before entering the profession.
In addition, any candidate for a judicial position must have a degree
in Law confirmed by a relevant diploma.
Lawyers in our country are trained in about 60 universities, with more
than 10 thousand graduates annually. This means that there is quite high
competition in the educational market of legal professions. However, the
training quality of future lawyers does not always meet the requirements.
In this regard, a qualifying examination is used for the selection of
only the most trained candidates for the position of judge.
Qualifying exam is the initial step in the selection of persons
applying for a judicial position for the first time.
The exam checks professional knowledge and skills of candidates,
determines the level of their qualifications, and the presence of moral and
ethical qualities necessary for holding a judicial position.
The exam is conducted by the Qualification Commission under the
High Judicial Council, which is formed for a period of two years.
The commission includes: the Commission chairman, specialists
from among professors of law, legal scholars, judges, representatives of
the General Prosecutor's Office, the Ministry of Justice, legal professions,
representatives of public, HR-specialists.
The qualifying exam is held at least 4 times a year.
Exam results are valid for 4 years.
Before passing the exam, candidates must undergo a special check to
identify facts of their criminal or administrative liability (in 2018, 227
candidates passed such tests, of which 10 appeared to be criminally
liable).
In 2018, 4 meetings of the Qualification Commission on the
qualifying exam procedure were held.
The exam was taken by 234 candidates (in 2017 – 258), who passed
the following parts:
1) psychological test and writing an essay;
2) computer-based test to check knowledge of national legislation;
30
3) solving case studies – specific situations from judicial practice.
Twenty-four candidates, or 11% (in 2018 – 76 (29.4%), of whom
there were 12 men and 12 women, average age was 37 years old (in 2017,
out of 76 candidates there were 44 men and 32 women, average age 37
years) successfully went through all the stages and were selected by
the Qualification Commission.
Candidates working in the judicial system (court secretaries, court
officials), civil servants, prosecutors, and persons engaged in teaching in
the field of law were most successful in these exams. Candidates who successfully passed the qualifying exam
for the judicial position, by fields of activity
Field of activity 2018
(number/ %) 2017
(number / %)
Judicial employees 10 (41,6%) 24 (31,6%)
Other state bodies employees 4 (16,6%) 5 (6,6%)
Prosecution office employees 3 (12,5%) 11 (14,5%)
Professors 2 (8,3%) 1 (1,3%)
Law enforcement officers 1 (4,1%) 6 (7,9%)
Private sector employees 1 (4,1%) 11 (14,5%)
Lawyers 1 (4,1%) 8 (10,5%)
Unemployed 1 (4,1%) 7 (9,2%)
Notaries 1 (4,1%) 3 (3,9%)
In 2018, there was a sharp decline in the number of candidates who
successfully passed the qualifying exam. One of the main reasons for this
should be considered a significant change in the way the exam is held.
31
Between April and September last year, there were no exams held
due to the need to modernize the entire system of qualifying exam
holding.
In August 2018, by the HJC’s decision, an updated qualifying exam
system was introduced, according to which the exam requirements
were toughened in order to select only the most prepared and worthy
candidates for judicial positions.
In particular, new approaches to carrying out psychological test
were introduced, which made it the main and mandatory stage of the
exam.
This test is based on techniques developed specifically for judicial
positions, which help psychologists identify individual psychological
characteristics required for a judicial position.
The results of updated tests showed that of 178 candidates who
passed it, only 69 people, or 38%, were considered as being
psychologically suitable for judicial positions.
Writing an essay is now a new stage of the exam; it is aimed at
determining the overall candidates’ literacy level and the ability to express
their judgments logically and correctly.
At the same time, in order to increase the objectivity and quality of
the essay assessment, an independent expert commission was created,
which includes representatives of the academic community.
In order to check legal knowledge more thoroughly, the number of
branches of legislation covered in the computer-based test was increased
from 6 to 11.
That is, candidates are now checked for knowledge not only of
constitutional, administrative and tort law, civil and civil procedure law,
criminal and criminal procedure law, but also labor, land, family, tax and
environmental legislation.
At the same time, in order to maximize the test’s objectivity and
transparency, it is carried out in the National Center for Personnel
Management of Public Service under the Agency for Civil Service
Affairs.
As a result of the toughening of the requirements, only 9 or 17%
of 53 candidates successfully passed the computer-based test (in 2017,
out of 258 candidates, 80 people were successful, or 31%; in the
beginning of 2018, 18 out of 56 people received good results, or 32%).
32
As a result of the qualifying exam modernization, case studies
simulating judicial practice have been improved and are now complex and
include questions on several areas of law.
In addition, there is now a possibility to appeal the results of the
computer-based test and case studies. Such appeals are considered by a special appeal commission
consisting of members of the High Judicial Council, the Supreme Court
judges and representatives of the academic community.
To increase objectivity and transparency of the work, the
Qualification Commission composition has been also updated, which
along with other members now includes two foreign experts, including an
HR management specialist.
As a result, the qualifying exam has become stricter to carefully select
the most worthy candidates.
So, out of the total number of candidates who passed the exam in
2018 (234), 178 passed it in a new format. From this circle of persons,
only 7 candidates, or 3.9%, were able to successfully pass all stages of
the exam. Those who have successfully passed the qualifying exam must also
undergo a polygraph test in order to obtain additional information and
validate the information they provide.
The results of such a test are advisory in nature and are taken into
account by members of the High Judicial Council when selecting
candidates for judicial positions.
33
As of the end of 2018, all 24 candidates who passed the qualifying
exam passed the polygraph test, with the received information attached to
their personal files.
As of the beginning of 2019, taking into account previous periods,
the number of individuals who meet all the requirements for taking up a
judicial position and who successfully passed the qualifying exam is 110.
These persons have the right to participate in further competitions for
filling vacant positions of judges.
Hereafter, the organization of the qualifying exam will be
structured in such a way that, at the end of all its stages, the most
capable, competent, successful and valuable judicial employees will be
selected.
For these purposes, approaches will be used that allow to evaluate
knowledge and skills of candidates following the results of several exam
stages without screening them out after each such stage (using the so-
called «cumulative effect»).
Also, during the examination, the HR-management techniques will
be more widely used and mainly aimed at identifying values, abilities, and
motivation of candidates.
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4.2. Competitive judges selection
According to the law, the selection of candidates for the positions of
chairmen and district court judges, judicial boards chairmen and regional
court judges, as well as the Supreme Court judges is held on a competitive
basis.
Thus, at present, the majority of judicial posts are selected on a
competitive basis, which increases the objectivity and quality of the
selection. After the announcement of the competition by the Council, all those
who wish to participate in it must submit an application and a list of
necessary documents to the High Judicial Council.
Lists of citizens who meet the established requirements and are
allowed to participate in the competition are sent to regional courts for the
evaluation of candidates by plenary sessions of regional courts (opinion
of the judicial community) and Councils for interaction with courts
(public opinion).
In 2018, plenary sessions of regional courts considered 1,164 judicial
candidates, of whom 1,070 (91.9%) received positive opinions.
In turn, the Councils for interaction with courts considered 1,190
candidates, of whom 1,131 (95%) received positive opinions.
Practice shows that there is formalism observed in the work of
plenary sessions and Councils for interaction with courts in the evaluation
of judicial candidates. However, the adopted set of measures of
organizational and explanatory nature allows to eliminate these
shortcomings.
Also, candidates participating in the competition for higher judicial
positions were to receive written guarantees from higher and retired
judges. However, since this requirement was largely formally
bureaucratic in nature and made applicants dependent on higher-ranking
judges, this requirement has been abolished by law since 2019.
Last year the Council, in order to fill vacancies, organized and
summed up results of 4 competitions for 444 judicial vacancies (in
2017 – 4 competitions for 416 vacancies), including 105 district court
chairmen, 293 district court judges, 46 regional court judges.
One thousand two hundred candidates took part in the competitions
(in 2017 – 990).
On average, up to 300 applicants participate in one competition.
35
The greatest number of applicants is observed in competitions for
vacant positions in the courts of Astana and Almaty (up to 59 people per
1 vacancy), the smallest – low-level courts distant from regional centers
(2 people per 1 vacancy).
The average age of people appointed as judges for the first time,
that is, district court judges, was 36 years, with an average legal
experience of 11 years.
At the same time, the absolute majority of candidates appointed as
judges for the first time are employees of judicial system (16 people),
prosecution office (5), legal professions (5), as well as law enforcement
bodies (2), lawyers of private companies (1).
The average age of people appointed as judges for the first time as
regional court judges was 46 years, with an average experience of 14
years, and for the positions of district court chairmen – 43 years and 10
years, respectively.
Since June 2018, a new system of competitive judges selection has
been introduced, in which selection procedures have become tougher
and much more objective and transparent and, at the same time, the
potential of Council members is used to the maximum.
For these purposes, the Council has developed and implemented a
system of criteria for the evaluation and judges selection, differentiated
by different categories of judicial positions. Based on these criteria, the High Judicial Council has introduced a
multi-stage, step-by-step system for evaluating candidates.
The first step is to check the compliance of candidates with the
requirements established by law.
The second step is the assessment of the criteria by a special
computer program (such as: legal and judicial experience, the result of
the qualification exam, educational level), which are automatically
calculated.
This program, developed on the basis of the so-called scoring
programs used in the corporate sector, was first tested in practice in the
work of the Council and is an element of the ongoing digitalization of the
entire selection system.
The third step is a comprehensive assessment by the permanent
members of the Council using the system of differentiated assessment
criteria (such as, for example, the quality of justice, the opinion of the
judicial community, characteristics, etc.).
36
Following the results of the above assessment steps, candidates are
interviewed by Council’s members with the participation of the Supreme
Court judges, which allows to determine the applicants’ communication
and professional skills. Interviewing, as a universal evaluation method,
was borrowed from HR-management field and for the first time applied
for the judges selection.
In order for the Council’s permanent members to acquire necessary
interviewing skills, special trainings were conducted involving leading
HR specialists.
The 2018 competitive selection proved the high efficiency of
interviewing as the evaluation method.
Interviewing also involves videoconferencing, firstly used by the
HJC.
Following the result of comprehensive assessment and interviewing,
the best candidates are selected by the Council’s permanent members for
submission to the HJC plenary session. The Supreme Court judges are
actively involved in this process as well.
The new selection system has been in place since June 2018 with
three competitions for vacant judicial positions held, according to which
195 candidates were recommended for judicial positions, of which 28 –as
regional court judges, 69 – district court chairmen, 98 – district court
judges.
Thus, the system of the judiciary selection, based on the use of
modern HR techniques, has been effective and serves, on the one
hand, to filter those who lack an adequate level of knowledge and skills,
as well as the necessary moral and psychological qualities. On the other
hand, it allows to select the most worthy and well-prepared candidates.
The competitive selection procedure is quite transparent, since the
Council posts in advance information:
– according the lists of people allowed to participate in competitions;
– on the schedule of meetings of Councils for interaction with courts
and regional court plenary meetings, as well as on the results of
consideration of candidates by these bodies;
– lists of people recommended following the results of competitions
for relevant judicial positions.
That is, judges themselves and the public, primarily legal community,
have the opportunity to express their opinion on the candidates at various
stages of selection, up to critical assessments.
With the new selection system, a formal bureaucratic approach
37
to candidates is eliminated, secrecy and subjectivism are minimised,
and the emphasis is placed on personal qualities of the candidates.
However, as the analysis shows, in recent years there has been a
downward trend in the number of people who want to work as judges,
which is associated with a decrease in the attractiveness of the judicial
profession, for which there are a number of serious reasons.
For example, if in 2015, an average of 256 candidates participated in
competitions for judicial positions, in 2018 their number decreased to 68
(in 2017 – 77, in 2016 – 102).
This is due to measures taken at the end of 2015 and in 2017 on
tightening the requirements for the legal experience of candidates for
judicial positions (from 2 to 10 years) and raising the age limit for judges
from 25 to 30 years.
On the one hand, this led to an influx of more experienced personnel
into the judicial system, but on the other hand, it reduced the total number
of candidates for judicial positions and affected the process of
rejuvenating the judiciary. As noted above, the average age of district
judges in 2018 increased from 41 years to 43 years.
Also, one of the reasons for reducing the number of participants in
the competition for judicial positions, in addition to stricter requirements
for judges, was the practice of holding competition for judicial positions
without making preliminary forecasts of the turnover of judges, as well as
lack of planning. As a result, applicants for judicial positions, not knowing
in advance the schedules of competitions, did not have time to properly
prepare for participation.
As a consequence of the decrease in the number of candidates and the
tightening of the requirements, there was an increase in the judicial
vacancies remaining unfilled after the competitions held.
So, according to the results of 2018, due to the lack of worthy
candidates, competitions for 111 judicial vacancies were declared invalid,
including 3 vacancies of regional court judges, 13 chairmen and 95 district
court judges (in 2017, competitions for 66 vacancies were declared
invalid, in 2016 – for 15 vacancies).
This problem was has become more actual with the turnover of
judges.
For instance, in 2018, 41 district judges (1.9% of the total number of
district judges) and 32 regional court judges (7% of the total number of
regional judges) were dismissed.
In general, the analysis showed that even if the total turnover rate
38
in the judiciary (that is, the ratio of the number of judges dismissed from
the office over a certain period of time to the total number of judges for
the same period) decreased from 5.7 % in 2017 to 2.9% in 2018, but
still remains quite high.
To get out of the current situation, a complex of organizational and
legal, social and other measures has been developed and is being
implemented to increase motivation of candidates and to expand the
access to the judicial system, including: 1) significant increase in wages for judges, especially for the lower
level and in courts with the highest workload and the most difficult
categories of court cases;
2) reduction in requirements for the legal experience of judicial
candidates from 10 to 5 years, which leads to an expansion of the pool of
possible applicants;
3) introduction of the so-called «side entrance» to regional courts for
experienced lawyers, bypassing the district level;
4) introduction of the possibility of a two-stage holding of a
competition for unfilled vacancies in which vacancies are offered to
candidates who participated in the competition for other positions. This
will help fill vacancies in courts;
5) holding competitions based on planned algorithms, according to a
pre-approved annual schedule; as a result, the overall terms of competitive
selection are reduced.
In addition, for the purposes of competitive selection, detailed
competences will be developed for judicial positions at the regional and
state levels, as well as senior management, containing the key
requirements for the judicial position necessary for their career
promotion.
It is expected that the implementation of the complex of these and
other measures will increase the attractiveness of the judicial profession
and ensure the flow of the most motivated, professional and experienced
personnel to the judicial system.
4.3. Career promotion of judges and the state of the personnel
reserve for judicial positions
39
District courts are the very first step in the career ladder of a judge,
and based on the principle of judicial meritocracy further promotion is
possible in two ways:
1) within the replacement of vacant higher judicial positions – that is,
the opportunity to become a regional court or the Supreme Court judge;
2) within the replacement of leading judicial positions – the district
court chairman, the chairman of the judicial board or the regional court
chairman, the chairman of the Supreme Court judicial board.
Further career growth means additional requirements for
candidates in terms of their legal and judicial work experience.
For example, candidates for judicial positions in regional courts must
have 15 years of legal experience or 5 years of judicial experience, and
candidates for judicial positions in the Supreme Court must have 20 years
of legal experience and 10 years of judicial experience.
Since 2019, there has been introduction of so-called «side entrance»
for the position of a regional court judge, when, bypassing the district
level, an experienced lawyer can immediately become a regional court
judge. Such a flexible approach significantly expands the possibilities for
the influx of professional personnel into the judicial system.
The selection and promotion of regional court judges, the Supreme
Court judges, as well as district court chairmen and chairmen of regional
court judicial boards are made by the High Judicial Council in a
competitive manner.
At the same time, the Head of State has the right to submit his
recommendation for the position of the Supreme Court judge out of
competition.
The Council’s selection of regional court chairmen and chairmen of
the Supreme Court judicial board is made on the proposal of the Supreme
Court chairman (candidates for such positions are submitted to the
Council by the Supreme Court chairman on an alternative basis).
One of the drawbacks of the previous career promotion model was
the possibility of unlimited reassignment of the same persons to senior
judicial positions.
In this regard, since 2019, a legislative ban has been imposed on the
appointment to equivalent leadership positions more than twice. That is,
now the court chairman after the double expiration of his/her term must
either become an ordinary judge in the relevant court or apply for higher
judicial positions.
40
In order to form the high-quality judiciary and ensure the judges’
career growth, an institute of personnel reserve for judicial positions is
currently operating.
The law provides that persons in such a reserve have priority in the
selection for higher and senior judicial positions.
Until recently, a special Commission on a personnel reserve,
previously functioning under the Supreme Court, operated to form a
personnel reserve, and since 2019 it will function under the High Judicial
Council.
The candidates (reservists) selected by the Commission are submitted
for consideration to the Council, which, if it agreed about the nominated
candidates, approves such a reserve.
As of the end of 2018, 431 judges were a part of the personnel
reserve, including (in 2017 – 442):
– for the position of the judicial board chairman of the Supreme Court
– 9 judges;
– for the position of the Supreme Court judges – 78 judges;
– for the position of the regional court chairman – 21 judges;
– for the position of the judicial board chairman of the regional court
– 114 judges;
– for the position of the district court chairman – 209 judges.
At the same time, in 2018, only 41 people from the personnel reserve
were appointed to the judicial positions, including 39 district court
chairmen, 1 judicial board chairman of regional court, 1 regional court
chairman.
One of the drawbacks of the former personnel reserve formation
mechanism was its substantial formalism, as well as the excessive
influence of the authorities of local courts on this process. This led to the
lack of demand for the reserve and difficulties in selecting professional
judicial personnel, including for higher positions.
Considering these and other circumstances, since 2019, the personnel
reserve formation has been fully transferred to the Council.
At the same time, the order of the reserve’s formation and
maintenance is becoming more open and objective, using elements of
the new competitive selection system based on transparent and
competitive mechanisms that ensure the reserve’s effectiveness and
quality.
Representatives of the legal community and HR specialists will
actively participate in the formation of the reserve.
41
At the same time, the role of the judicial community itself in the
personnel reserve formation will still remain the leading one.
42
Chapter 5. Professional assessment of judges
To improve the qualitative composition of the judiciary, assess and
stimulate the growth of professional qualifications, increase their
responsibility in handling cases, there is an institute for professional
assessment of judges.
Until recently, such a professional assessment was carried out by the
Qualification Commission of the Trial Jury under the Supreme Court.
Since 2019, this assessment will already be handled by the newly
created Commission on the quality of justice under the Supreme Court.
The evaluation of the judges’ professional activity is for the first time
carried out based on the results of one (first) year of work as a judge.
If following the results of the first trial year of work, the judge failed
to pass the assessment, he or she shall be dismissed from the judicial
position.
Later, assessment is carried out every five years, as well as when
participating in the competition for the position of judge of a higher level,
for the position of the court chairman or the judicial board chairman.
Judges who have twenty or more years of judicial experience are
exempt from the assessment of professional activity.
The professional knowledge, judge’s experience and work quality
being assessed are determined on the basis of the documents submitted
and the results of checking the level of legal knowledge, compliance with
judicial ethics, court work organization.
At the same time, the examination on substantive and procedural law
of judges, whose activities are to be assessed following the results of
the first year of work, is carried out by conducting interviews and
examining by members of the commission of judicial acts that have
entered into force in various categories of cases. The analysis of the
reasons for the cancellations and changes in judicial acts for the year of
work is also performed. The official characteristics of the judge are
studied, the facts of bringing the judge to disciplinary responsibility,
complaints on the actions and decisions of the judge, comments of higher
judicial instances on the judge, on judicial acts issued by the judge are
considered.
The knowledge of substantive and procedural law of judges who are
subject to periodic evaluation based on the results of every 5 years of
work is currently checked with the help of examination papers compiled
for courts of general jurisdiction, specialized courts and regional courts.
43
Personal qualities of the judge assessed are determined by the
materials and data on him or her submitted by the regional courts.
The results of the judge work are currently considered on the basis of
the following criteria:
1) indicators of the justice delivery quality;
2) compliance with the standards of judicial ethics and discipline.
If one disagrees with the assessment results, he or she may appeal the
decision of the Qualification Commission of the Trial Jury, which since
this year will be converted into the Commission on the justice quality.
In 2018, 231 judges passed professional assessment, including:
– following the results of one year of work – 92 (all positive);
– following the results of every 5 years of work – 139 (137 – positive
and 1 – negative, in relation to 1 judge, a decision was made to transfer to
another court, to another specialization).
To participate in the competition for higher positions, 270 judges
passed the assessment (217 – positive opinions, 53 – were not
recommended).
In 2019, 490 judges are subject to professional assessment (20%
of the actual number of judges – 2,442), including:
– 489 district court judges;
– 1 regional court judge.
In 2018, the Council considered 2 complaints against decisions of
the Qualification Commission of the Trial Jury (in 2017 – 4).
According to the results, all decisions of the Qualification
Commission of the Trial Jury were found to be justified (in 2017 – 1
decision of the Qualification Commission was found to be ungrounded).
It should be noted that there is still a possibility of appealing to the
High Judicial Council of decisions following the results of the assessment
by the new Commission on the quality of justice.
At the same time, at present, the Supreme Court, whose competence
includes issues of professional assessment of judges, is developing
measures to modernize the system of assessment of judicial activity so
that this system becomes more objective, transparent and modern.
44
Chapter 6. Responsibility of judges
The judge, as a representative of the authorities, must be flawless and
meet high standards of the activities and conduct of judges. In case of
deviation from the established standards and norms, it is possible to
consider the issue of their responsibility.
Responsibility of judges, on the one hand, as a form of social
responsibility, is an element of their accountability to society and the
state. On the other hand, responsibility is an important component of
the judge’s legal status.
It is during the consideration of issues of responsibility that the
concentrated opinion of the public in relation to the courts and judges is
expressed.
Meanwhile, in 2018, the High Judicial Council received more than
450 complaints from citizens about the actions of judges and
disagreement with judicial acts. The Trial Jury of the Supreme Court also
received about 700 complaints against the actions of judges. According to
the results of the examination of complaints, 17 disciplinary proceedings
were initiated against judges and 17 judges were brought to disciplinary
responsibility.
The presence of the institution of responsibility disciplines judges,
but bringing to it should be a last resort, when other mechanisms of
influence appeared to be ineffective and when there is a clear and gross
violation of the law and the rules of judicial ethics.
Given the special, constitutional status of judges, bringing them to
responsibility, including disciplinary, is much more complicated than in
relation to other public servants, which is due to the need to respect the
guarantees of independence and immunity of judges.
Thus, the procedure for bringing judges to disciplinary responsibility
should ensure a fair and legally compliant disciplinary case, as well as the
possibility of appealing its results in the High Judicial Council.
In accordance with international standards, the disciplinary
responsibility of judges should be addressed by the judicial community
itself. At the same time, the procedure for bringing judges to justice
should be objective and avoid conflicts of interest and manifestations of
false corporate solidarity. In this regard, the transfer of disciplinary
issues under the auspices of the Council is a timely step and will make
the mechanism for holding judges accountable more objective and
balanced.
45
In accordance with the Constitutional Law “On Judicial System and
Status of Judges of the Republic of Kazakhstan” a judge may be brought
to disciplinary responsibility: 1) for gross violation of law in trial cases;
2) for committing a defamatory offense, contrary to judicial ethics;
3) for violation of labor discipline.
It should be noted that since 2019, in accordance with the standards
of OECD countries, violation of labor discipline is excluded from the
number of legal grounds for bringing judges to disciplinary responsibility.
Now the following types of disciplinary action can be applied to
judges:
1) remark;
2) reprimand;
3) dismissal of the court chairman or the judicial board chairman for
improper performance of official duties;
4) dismissal of a judge on the grounds stipulated by the Constitutional
Law.
In 2018, 59 judges were brought to disciplinary responsibility, 4
of them – twice (that is, two penalties were imposed on them for various
violations during the year) (in 2017 – 76 judges, two of whom were
brought twice). The following disciplinary actions were imposed:
– remark – 25 (in 2017 – 32);
– reprimand – 26 (in 2017 – 36);
– dismissal of the chairman – 1 (in 2017 – 0);
– dismissal of a judge – 11 (in 2017 – 10).
Thus, practice shows that the most frequently imposed disciplinary
actions on judges are remarks and reprimands. It should be noted that the
penalty in the form of dismissal of a judge was also often used in practice.
Grounds for disciplinary proceedings:
Of the total number of judges brought to disciplinary responsibility,
the grounds for imposing penalties were:
– flagrant violation of the law in court trials – 35 (in 2017 – 50);
– violation of judicial ethics – 17 (in 2017 – 21);
– inadequate performance of duties – 8 (in 2017 – 1);
– violation of judicial ethics and labor discipline – 1 (in 2017 – 3);
– flagrant violation of the law in court trials and violation of labor
discipline – 1 (in 2017 – 2);
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– violation of judicial ethics and improper performance of duties – 1
(in 2017 – 0);
– flagrant violation of the law in court trials and violation of judicial
ethics – 0 (in 2017 – 1).
That is, in most cases, the grounds for bringing judges to
disciplinary responsibility were violations of the law in court trials by
judges and failure to comply with the norms of judicial ethics.
Among those brought to disciplinary responsibility:
– 1 regional court chairman;
– 3 regional court judges (in 2017 – 7);
– 14 district court chairmen (in 2017 – 10);
– 41 district court judges (in 2017 – 59).
The analysis shows a decrease in the number of judges brought to
disciplinary responsibility by 22.4% (or 59 vs. 76).
A slight change is observed in the ratio of the number of judges
brought to disciplinary responsibility to the total number of judges in the
country.
In 2018, of the total number of judges, 2.4% were brought to
disciplinary responsibility (59 out of 2,442), in 2017 – 3.1% (76 out of
2,489).
In case of disagreement with the disciplinary action imposed, the
judge may appeal to the Council.
Following the consideration of a complaint, the Council may
recognize the decision of the Commission of the Trial Jury as justified or
ungrounded. Moreover, if the decision of the Commission of the Trial
Jury was recognized as ungrounded, the latter must cancel it and consider
anew.
In 2018, the Council considered 11 complaints against the decisions
of the Disciplinary Commission of the Trial Jury (in 2017 – 12).
Following the consideration, 4 decisions of the Disciplinary
Commission of the Trial Jury were found to be ungrounded (in 2017,
all decisions of the Disciplinary Commission were found to be justified).
That is, the mechanism for appealing the decisions of the Trial Jury
by judges acts in practice as a tool to ensure the independence of judges.
At the same time, since 2019, the procedure for handling complaints
against decisions of the Trial Jury has been changed.
Now, when recognizing the decision of the Trial Jury as ungrounded,
the Council may cancel it and stop the case, or cancel and send the case
for a new consideration to the Trial Jury.
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This will allow to prevent cases of bringing of judges to disciplinary
responsibility without any ground.
Thus, the analysis of the practice of bringing judges to disciplinary
responsibility indicates the need for:
1) further improvement of the justice delivery quality;
2) further training of judges;
3) improving the mechanisms for bringing judges to disciplinary
responsibility.
Kazakhstan, as is known, is carrying out a tough, uncompromising
fight against corruption. This fully applies to the judiciary as well.
In this regard, in 2018, 7 local court judges were prosecuted (in
2017 – 2).
Of these cases 6 judges were prosecuted for corruption crimes.
Of 7 judges, one judge was convicted; in respect of 3 judges, the
criminal case was terminated on rehabilitating grounds, and in respect of
the remaining 3 judges, it is at the stage of pre-trial investigation.
Of these, 6 judges were dismissed by decision of the Trial Jury (on
negative grounds), the powers of one judge were suspended.
These negative facts indicate the need for further systemic
counteraction to corruption offenses, primarily through the prevention of
such offenses among judges.
To this end, by its decision of September 27, 2018, the HJC ordered
to consider the question of extending the anti-corruption mechanisms
provided for by the Law “On Countering Corruption” to the judiciary,
taking into account the specifics of their activities.
In particular, in order to effectively counteract offenses among the
judiciary, it is necessary to conduct a thorough analysis of the causes and
conditions of committing them, as well as the existing disciplinary
practice of the Trial Jury.
In general, as already noted, a set of systemic measures is needed,
allowing on a permanent basis to effectively prevent unlawful actions and
to exclude the possibility of their occurrence among judges.
At the same time, measures to counter offenses in the judicial system
should be aligned to ensuring guarantees of independence and immunity
of judges and should be carried out with an emphasis on identifying,
minimizing and eradicating the causes and conditions of the commission
of unlawful acts.
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Chapter 7. Dismissal of judges
The judicial career ends with the dismissal. The procedure for
dismissal of judges, like the procedure for bringing them to disciplinary
responsibility, is complex and multi-step in nature and is carried out on
the grounds and in the manner prescribed by law.
Judges are dismissed on the grounds provided for by the
Constitutional Law (at present, there are 13 reasons).
At the same time, the dismissal of the chairmen, chairmen of the
judicial boards and local court judges, as well as chairmen of the Supreme
Court judicial boards is executed by decree of the Head of State, and the
Supreme Court chairman and judges– by a resolution of the Senate of the
Parliament.
By resolutions of the Senate of the Parliament in 2018, 7 Supreme
court judges were dismissed (2 – due to the appointment as chairmen
regional court chairmen, 4 – due to resignation, 1 – due to death) (in 2017
– 3 judges were dismissed including the Supreme Court chairman, and 2
judges – because of the appointment to regional courts as chairmen).
By the decrees of the Head of State, in 2018, 73 judges of local
courts were dismissed, including: 2 chairmen, 1 judicial board
chairman, 29 regional court judges, 6 chairmen and 35 judges of district
courts.
The grounds for the judge dismissal were:
– resignation (honorary resignation) – 39 (in 2017 – 53);
– reaching the retirement age – 8 (in 2017 – 11);
– transfer to another job – 4 (in 2017 – 30);
– of own volition – 15 (in 2017 – 36);
- by the decision of the Trial Jury (that is, on negative grounds) – 6
(in 2017 – 15);
- death – 1 (in 2017 – 4).
In addition, 4 district court chairmen were dismissed due to the
expiration of the five-year term of the chairman; they were left in the
position of a judge.
As the analysis showed, in 2018 the number of judges dismissed of
their own will and because of the transfer to another job decreased 3.5
times (from 66 to 19).
The factors affecting the decision of the judges to dismiss of their
own will and because of the transfer to another job are still: a large
procedural workload, significantly exceeding the established standards, as
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well as job offers in quasi-public and private sectors with a higher wage
level and more attractive working conditions.
There are also other factors that influence the decision of the judges
to leave the judicial system.
The Council is also competent to approve the extension of the
powers of a judge upon reaching retirement age. Due to consistently high quality of work and an impeccable
reputation in 2018, the Council gave a consent to the Supreme Court
chairman to extend the powers of 9 judges (in 2017 such a consent was
given to 4 judges).
Also during 2018, 28 retired judges were returned to judicial
positions (in 2017 – 21). This possibility is provided by law, since it
allows reducing the burden on the existing judiciary, using the experience
and knowledge of the retired judges.
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Chapter 8. International cooperation
One of the important activities of the High Judicial Council of
Kazakhstan is the establishment and strengthening of relations with
foreign partners, international organizations and experts.
Such work of the Council is aimed at using the best world practices
and recognized international standards in the institutional
development of the Council, improving the selection system and training
of judicial personnel.
As a part of this work, in 2018, for the first time, working visits of
Council delegations to the High Council of the Judiciary of the French
Republic, The High Council of the Judiciary Of The Italian Republic, The
General Council of the Judiciary of Spain, Judicial Appointments
Commission of the Kingdom, the land courts and the German justice
authorities were held.
During these visits, their work experience was studied and
preliminary agreements on further cooperation were reached.
As a result, in December 2018, for the first time in the history of
the High Judicial Council of Kazakhstan, a memorandum of
cooperation was signed with the High Council of the Judiciary of the
Italy. This document provides for joint training and research activities in
the field of selection, training and promotion of judges.
Contacts are also being established with the International Association
for Court Administration.
Starting from last year, the Council has been regularly interacting
with the UNDP, the World Bank, the OSCE, and the Venice Commission
of the Council of Europe.
The experts of these reputable international organizations provide
advisory and technical assistance to the work of the Council and work out
recommendations for its further modernization based on generally
accepted international standards.
At the same time, a number of such recommendations and the
experience of their implementation in Kazakhstan was the subject of
discussion at the international round table held by the Council with the
assistance of the OSCE Office in Astana in November 2018 titled:
“Modernization of the system for selecting judges and the activities
of the High Judicial Council of the Republic of Kazakhstan”.
The round table gathered foreign guests, judges, representatives of
the Presidential Administration, the Parliament and the Government, the
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General Prosecutor's Office, the Ministry of Justice, other state bodies and
organizations, the legal community, and the academic community of the
country.
The recommendations of the round table were taken into account
when the Council worked out measures to transform its activities and
strengthen the personnel capacity of the judiciary.
Also in 2018, a number of meetings with officials of foreign states
and international organizations were held at the Council’s place, where
were also discussed the issues of modernization of the judicial selection
system in Kazakhstan.
In addition, last year, the Council participated in the meeting of the
European Commission for Democracy through Law (Venice
Commission), where the expert opinion of the Venice Commission on the
Concept on the reform of the High Judicial Council of Kazakhstan, which
formed the basis of the relevant draft law, was considered.
This Concept as a whole received a positive assessment of the Venice
Commission, but at the same time possible directions for further
improving the system of selection of judges in our country were
recommended.
Also in 2018, an external assessment (with an active participation of
the European Union) of the activities of the Council and the Kazakhstani
system for the judges selection was conducted. The results of this external
assessment were used in determining the set of measures for the HJC
modernization of Kazakhstan.
The High Judicial Council intends to continue to systematically
expand and deepen international cooperation, to maintain an active
dialogue with foreign and international partners and experts.
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CONCLUSION
Following the results of targeted measures to implement Nation Plan
“100 concrete steps to implement five institutional reforms” and the
Message of the Head of State to the people of Kazakhstan “The growth
of the welfare of Kazakhstan: an increase in income and quality of life”,
tangible results were achieved in the selection of judges and
modernization of the High Judicial Council.
For example, the selection system and judges promotion has
become more transparent, objective and competitive, ensuring full use
of the potential of the Council members and excluding formalism and
subjectivism.
Due to this, the process of replenishing the judiciary with the most
well-trained and dedicated personnel, who possess not only relevant
knowledge, but also the necessary moral and psychological qualities, is
underway.
This has become possible due to the toughening of the selection
procedures, as well as the simultaneous expansion of access of potential
candidates to the judicial system.
All this has a positive effect on the level of trust in the judiciary and
the judges selection system, as its initial level.
At the same time, work on the modernization of the selection system
and placement of personnel in the judicial system continues. This work
will be focused on further improvement of: 1) qualifying exam procedures for judicial candidates;
2) mechanisms for competitive selection of judges;
3) order of formation of the personnel reserve for judicial positions.
As a part of this work, the digitalization of the entire system and
the stages in the selection of judges continues, which will improve the
efficiency and objectivity of the selection procedures and will reduce the
influence of the human factor.
In the future, the main vector of modernization of the selection
system and judges promotion should be a systematic shift from
exclusively the recruitment of judges to ensuring the fuller use of all
components of the HR management system in the Council’s activities.
Institutional strengthening of the High Judicial Council is
associated with the formation within the Council of the full range of
standing commissions dealing with specialized issues – the competitive
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selection of judges, the consideration of disciplinary cases (Trial Jury),
the formation of personnel reserve.
This is also necessary in order to avoid conflicts of interest between
various functional areas of the Council’s activities, for example, between
the selection and training of judges and their disciplinary responsibility.
In institutional terms, the Council will also have to realize its
potential not only as a modern personnel service, but also as a platform
for developing proposals for improving the judicial system and
national legislation on the most important judicial issues.
This approach is consistent with the best international practices,
including those observed in the work of the High Councils of the Judiciary
of a number of European countries.
These measures will generally allow to complete the institutional
formation of the High Judicial Council in its current model.
The High Judicial Council clearly sees the problems existing in the
judiciary and in cooperation with the Supreme Court will take all steps
necessary to tackle them.
The actions taken to implement the instructions of the Head of
State in the judicial sphere, and above all to increase citizens' confidence
in the courts and judges will consistently and purposefully continue.
The High Judicial Council of the Republic of Kazakhstan expresses
gratitude to the judicial community, all interested state bodies,
international and public organizations, domestic and foreign partners who
provide assistance and support in institutional reforms implemented by
the Council in accordance with the instructions of the Head of State.
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