Comments on article 12. Independence of judges of the Civil Procedure Code of the Republic of Kazakhstan

1. A judge is independent in the administration of justice and is subject only to the Constitution of the Republic of Kazakhstan and the law.

2. Judges shall consider and resolve civil cases in conditions that exclude any outside influence on them. Any interference in the activities of judges in the administration of justice is prohibited and entails liability established by law. Judges are not accountable for specific cases.3. Guarantees of judicial independence are established by the Constitution of the Republic of Kazakhstan and the law.

1. The most important guarantee of judicial independence is the principle of independence of courts and judges. In countries where this principle is constitutionally proclaimed, including Kazakhstan, regulatory legal acts may not be issued that repeal or diminish the independence of courts.According to the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", judges are independent in the administration of justice and obey only the Constitution and the law. It is not allowed to adopt laws or other regulatory legal acts that infringe on the status and independence of judges.Independence is not a privilege of judges, but a responsibility to society and the citizen. This understanding of independence is formulated in the "Basic Principles of Judicial Independence" adopted by the Seventh UN Congress in 1985. This document emphasizes that the independence of the judiciary is guaranteed by the State and enshrined in the Constitution or other laws of the country, and draws attention to the fact that these principles are adopted to ensure the right of all citizens to fair justice, proclaimed in the Universal Declaration of Human Rights and enshrined in the International Covenant on Civil and Political Rights. Therefore, the struggle for the independence of judges is a struggle for the rights of citizens, for the protection of the constitutional order, and not a struggle for judicial privileges.Consolidating the principles of judicial independence and the irremovability of judges is not an end in itself, it is necessary, first of all, to ensure the impartiality of justice.The principles stipulated by international standards that determine the independence of the judiciary are generally accepted by the Kazakh judicial system.It should be noted that the judicial reform carried out in Kazakhstan pursued two interrelated goals: on the one hand - to strengthen the independence of judges, on the other hand, to increase the requirements for their professional and civil responsibility.But it is precisely the issue of achieving an optimal balance between the independence and control of judges by the public that has become the main difficulty along this path, since it is quite difficult to objectively achieve a proper balance between two competing values., without encroaching on judicial immunity and independence.The rules of conduct and responsibility of judges are fixed in the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" and in the Code of Ethics of Judges.The independence of the courts and a strictly defined procedure for their activities create a clear legal basis for the protection of individual rights. The consolidation of the principle of judicial independence and the adoption of concrete measures aimed at its implementation are necessary to ensure the impartiality of justice.Courts should pay special attention to the independence of judges, take measures to prevent interference in their activities, and prevent attempts to control judges or impose duties on them beyond their powers.

2. Section 7 of the Constitution emphasizes the independence of the court, as well as establishes the basic guarantees of judicial independence (prohibition of interference, freedom of judges from accountability in a particular case, immunity, rules on the incompatibility of judicial office with other positions). Interference in the court's activities should be understood as any form of influence on a judge in order to prevent him from exercising objective and impartial justice in a particular case. Such types of interference may include, in particular, a direct instruction or an indirect request from a person to make a decision in favor of a particular party to the judicial process, the deliberate creation of conditions under which the judge is forced to make a certain decision, and other similar actions.Taking control of a case pending in court by State bodies or their officials should be regarded as interference in judicial activities in order to obstruct the administration of justice.

A judge in the administration of justice must be impartial, strictly adhere to the principle of competition and equality of the parties.It is unacceptable for a judge to make any kind of preliminary judgments on a case pending before him. The judge expresses his opinion on a particular case only in the conference room.In accordance with the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", appeals, applications and complaints from citizens and organizations subject to judicial review cannot be considered on their merits or taken under control by any other bodies, officials or other persons.

Based on this, the courts should disregard written or oral appeals from government officials, which set out recommendations for resolving a particular case, and, if necessary, raise the issue of bringing these persons to justice.Government officials, in accordance with the above-mentioned requirements of the law, should explain to applicants the appeals and applications of citizens and organizations in court cases., that complaints against judicial decisions may be filed only with a higher court and in accordance with the procedure established by law.The Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" also prohibits interference of any kind in the activities of the courts and provides for legal sanctions in case of interference. Kazakh legislation provides for administrative and criminal penalties for violations of the principle of non-interference in the administration of justice, which is an objective criterion for a fair court decision.The Constitution stipulates that "any interference in the activities of the court in the administration of justice is unacceptable and entails liability under the law." In other words, there is a clear guarantee that no government agency, official, or individual or legal entity can impose its vision on a judge to resolve a particular issue being considered by the court.At the same time, it should be borne in mind that the judiciary is independent only within its powers, that is, in the administration of justice.3. The independence of the court in the system of other state executive and legislative authorities is undoubtedly an achievement of progressive human thought, which has found its worthy application in the practice of many States following the path of developing their democratic public institutions.The principle of independence of judges and their subordination only to the law is one of the constitutional principles of civil procedure.These constitutional provisions were further developed in the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan". In particular, the provisions of the said Constitutional Law provide for the following rules::

1) judges of all courts of the Republic of Kazakhstan have the same status and differ only in their powers.;

2) a judge may not be entrusted with non-judicial functions and duties not provided for by law. A judge may not be included in government structures responsible for combating crime, upholding the rule of law and order.;

3) in the administration of justice, judges are independent and subject only to the Constitution and the law.;

4) no one has the right to interfere in the administration of justice or to exert any influence on the judge and jurors. Such actions are prosecuted by law.;

5) the judge is not obliged to give any explanations on the merits of the considered or pending court cases.

The secrecy of the consultation room must be ensured in all cases without exception; 6) the financing of courts, the financial support of judges, as well as the provision of housing for them are carried out at the expense of the republican budget in amounts sufficient for the full and independent administration of justice.

Judicial decisions and demands of judges in the exercise of their powers are binding on all State bodies and their officials, individuals and legal entities. Failure to comply with judicial decisions and requirements of a judge entails liability established by law.

A judge is independent, but his independence is clearly regulated by law, i.e. "limited", outlined by legislative and regulatory legal acts, to which the judge is strictly subordinate.

In general, the independence of judges is ensured by legal, political and economic guarantees.

Additional comment: "The independence of the judiciary, together with the guarantee of access to legal remedies and the principles of a "lawful and independent judge," form the basis of a State governed by the rule of law. The independence of the judiciary also entails functional independence (absence of external influence on decision-making)"___________________5 An expert opinion on the draft CPC by German expert Lutz Divell.

2. The conditions under which cases are considered and resolved are of great importance for the proper administration of justice. As a rule, cases are considered in the courtroom, decisions are made in a specially designated conference room, excluding any outside influence on the court.

The rule is established that any interference in the activities of judges in the administration of justice is prohibited and entails liability established by law. The indication of the non-accountability of judges in specific cases provides procedural guarantees for non-interference in the process of administration of justice by the heads of judicial bodies (chairmen of courts and chairmen of judicial boards of courts).

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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