«It should be noted that the question on development of the trial jury institution in Kazakhstan is very difficult, as it is not only legal, but also political in nature,» – independent researcher Slyamzhar Akhmedzharov, mentions in his article written specifically for CABAR.asia.
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Brief overview of the article:
- Despite more than a decade of functioning, the trial jury in Kazakhstan has not been able to earn full “power” and take a legitimate place in the justice system;
- Low criminal jurisdiction has led to the low-applicability of the trial jury in practice;
- The problems of the trial jury in Kazakhstan, which are connected to their limitations were reflected in the ambitious national program “100 concrete steps”, presented in May 2015;
- In the conditions of modern Kazakhstan, the trial jury has great potential to increase public confidence not only in the legal system, but also in the state power as a whole.
According to various international ratings, in Kazakhstan there is an ambiguous situation with the level of effectiveness in the justice sphere. On the one hand, in terms of the effectiveness of resolving commercial disputes in civil proceedings, Kazakhstan occupies a leading position in the world. Consequently, in the World Bank’s “Doing Business” study, aimed at assessing the favorableness of doing business in a particular country, in 2019 Kazakhstan entered the top five countries in the world (4th place) in terms of “enforcing contracts.”[1] In this indicator, Kazakhstan was ahead of such developed countries as France (12th place), USA (16th place), Germany (26th place) and Japan (52nd place).
On the other hand, in other ratings, including a wider range of indicators for measuring the level of effectiveness of justice, Kazakhstan has rather low positions. Therefore, in the Rule of Law Index in 2019, Kazakhstan ranked 65th out of 126 countries.[2] While in the Freedom House rating for the same period,[3] Kazakhstan is designated as a non-free country.
It is noteworthy that the efforts of Kazakhstan towards the development of the judicial system led to the fact that back in 2007, the republic, following the example of developed countries of the world, initiated the inclusion of public participation in the administration of justice through the introduction of a trial jury. It should be noted that despite more than a decade of functioning, the trial jury in Kazakhstan has not been able to earn full “power” and take a full place in the justice system. What is the reason for this paradox? Why has the jury institute continued to remain at the margins of the judicial system throughout its practice?
It should be noted that the question on development of the trial jury institution in Kazakhstan is very difficult, as it is not only legal, but also political in nature. The meaning of the trial jury is that, representatives of the ordinary people get the opportunity to administrate justice. In other words, the state shares power with the people. Hence, it must be understood that the process of transferring the rights of criminal repression from officials to the hands of ordinary citizens cannot happen quickly and easily. That is why, today, trial jury is still playing a weak role in the judicial system of Kazakhstan and are more like a decorative institution. It should be noted that one of the main negative factors causing this problem are:
Firstly, the functioning of a mixed trial jury model in Kazakhstan. According to Article 655 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014, at the end of the court examination, the judge and trial jurors are moved to the deliberations room, where they jointly decide on the guilt of the defendant and determine the sentence to him/her. This form of administration of justice initially creates risks, in view of the possibility, where the judge can influence the opinion formation of trial jurors.
Secondly, an extremely low trial jury process is recorded in Kazakhstan. The low prevalence of trial jury is primarily due to the low jurisdiction of this institution. The main jurisdiction of the jury is the consideration of criminal cases, where the alleged penalty is life imprisonment or the death penalty. That is why an extremely small number of criminal cases are available for trial jury review.
Thirdly, the overwhelming number of absolutory sentences handed down by trial jurors in practice are canceled at higher instances. Therefore, according to the data of the General Prosecutor’s Office of the Republic of Kazakhstan, about half of the absolutory sentences delivered by the trial jury in the period 2012-2015 were canceled by the judicial collegiums in appeal and cassation instances.
Historical retrospective: factors causing current problems in the trial jury functioning
Amendments to the code of criminal procedure regarding the introduction of trial jury in Kazakhstan were adopted back in 2001. From that moment on, there was a wide discussion in expert circles regarding the format of the trial jury, which can be divided into two groups. On the one hand, most lawyers,[4] legal scholars,[5] representatives of international NGOs[6] and some deputies of the Majilis[7] advocated the classic American trial jury model, according to which the verdicts are decided by the trial jury, while the judge only determines measure of punishment. On the other hand, most judges[8] and prosecutors[9] suggested using a mixed court model, following the example of France and Germany, where decisions on guilt and penalties are taken by jury together with the judges. The parliamentary deputies approved this model in 2006. Since January 2007, the trial jury institute has come into practice.
At the initial stage of its work, the structure of the mixed collegium consisted of 9 jurors and two judges.[10] In 2010, there were changes in the structure, namely the number of judges was reduced to one, while the number of jurors was increased to 10. To date, this trial jury model has functioned without any change. That is, despite the widespread criticism from various NGOs and human rights defenders regarding the fact that the judge exerted pressure on the jury, no steps were taken at the legislative level to change the format of jury administration in favor of the classical model.
As for the limited use of the trial jury – this problem must be considered in the context of the evolutionary development of court in Kazakhstan. For more than a decade of existence, the jurisdiction of the trial jury has changed several times.
- 2007-2009 at the initial stage of functioning, the jurisdiction of the trial jury included cases for which the criminal code provided sentences in the form of life imprisonment or the death penalty.
- 2010-2013 the next period was marked by a significant expansion of the jurisdiction of criminal cases for the trial jury. Therefore, in this period, particularly all grievous crimes were available for trial jury.
- 2013 – 2015 there was a decrease in the jurisdiction of criminal cases by trial jury to the initial level (i.e., the consideration of criminal cases for which punishment is provided in the form of life imprisonment or death penalty)
In turn, the low jurisdiction of criminal cases has led to little applicability of the jury in practice. Indeed, according to the Committee on Legal Statistics of the Civil Code of the Republic of Kazakhstan (Table 1), one can see a huge difference between the number of criminal cases examined by a trial jury and criminal cases examined by a single judge. Therefore, on average, the share of trial jury is less than one percent of the total number of criminal cases.
Following further, the main reason for the cancellation of absolutory sentences by the trial jury is the widespread accusatory bias in Kazakhstani judicial practice. According to the General Prosecutor’s Office of the Republic of Kazakhstan, in cases with public prosecution (i.e. with the presence of the prosecutor), more than 99% of criminal cases end with a guilty verdict. In other words, the defendants have practically no chance to win a criminal case. However, jurors violate this “tradition”, by giving absolutory sentence more often than is “accepted” in ordinary courts (Table 2). As a result, trial jury verdicts are often overturned by appeal and cassation instances. In turn, this trend signals the “resistance” of the judicial system to the effective functioning of the jury.
Modernization of the trial jury within the framework of the “100 steps”
The problems of the trial jury in Kazakhstan connected to their limitations were reflected in the ambitious national program “100 concrete steps”, presented in May 2015. This program is aimed at eliminating systemic problems in public policy in order to enter the country into the list of top 30 most competitive countries in the world. One of the priority areas of the presidential program is to ensure the rule of law through a series of judicial reforms. The first President of the Republic of Kazakhstan, Nursultan Nazarbayev, sets the task in step No. 21: “Expanding the scope of the trial jury. Legislative definition of the category of criminal cases in which the TRIAL JURY SHOULD BE MANDATORY” (style retained. – Ed.).
More than four years have passed since the moment when Nursultan Nazarbayev called for expanding the jurisdiction of the trial jury in Kazakhstan. Despite this, the jurisdiction of this institution has undergone only minor changes. Therefore, amendments to the Criminal Code of the Republic of Kazakhstan in 2016 made it possible for trial jury structure (in addition to the existing jurisdiction) only certain episodes of criminal cases:[11] involving minors in criminal offenses, kidnapping, human trafficking, trafficking in minors. According to official statistics, these crimes are extremely rare in the republic. For example, in 2018, as part of the newly added episodes, trial jury were not considered. Thus, it can be argued that there was a “false” extension of the trial jury jurisdiction. Instead of including the whole category of criminal cases (grievous crimes or core crimes), only a few separate episodes were added to the jurisdiction of the trial jury, which are extremely rare in practice.
The role of the trial jury institution in the context of state policy of Kazakhstan
The current state policy of Kazakhstan is aimed at improving the well-being of citizens, as well as entering the country into the list of 30 most competitive countries in the world. In order to achieve this goal, various state programs such as “Kazakhstan 2050”, “100 Concrete Steps”, “Modernization 3.0”, and others are being adopted. However, it should be noted that economic measures and strategies are not enough for Kazakhstan to enter the league of developed countries. Since one of the fundamental characteristics of a developed state is the trust of citizens in the justice system.
According to the Organization for Economic Cooperation and Development (OECD) annual reports, there is a direct correlation between the level of public confidence in the justice system and the degree of state accountability to society.[12] In countries with a high coefficient of trust in the judicial system, state institutions are more responsible and closer to the people.
In turn, the main factor in the availability of public confidence in the judicial system is the impartial and fair administration of justice. In the conditions of modern Kazakhstan, the trial jury has a huge potential to increase public confidence not only in the legal system, but also in the state power as a whole. This is due to the fact that the trial jury provides a unique opportunity for ordinary citizens to judge and be judged by equal people.
Giving citizens the power to make decisions helps to improve the relationship between the state and society. French politician Alexis de Tocqueville compared the jury with a miniature parliament and noted the positive impact of this institution on the human mind: “The trial jury teaches everyone to be responsible for their actions, and without this courageous position it is impossible to nurture political decency”[13]
Improving the trial jury in Kazakhstan is especially relevant in the context of the ongoing modernization of the criminal prosecution system. President of Kazakhstan Kassym-Jomart Tokayev directly noted the need to improve justice in his inaugural address: “The court is the guarantor of the rule of law. The court should become the last instance of justice …”[14]
While the Chairman of the Supreme Court J. Asanov openly admits the presence of the following problems in the judicial sphere:[15]
- Lack of a fair trial;
- Dependent position of judges on management;
- Incorrect system for evaluation of judges;
Thus, the political leadership of Kazakhstan understands that reforms in the judicial system are still far from completion. Comprehensive measures are needed to increase public confidence in the court. Here, the trial jury institute has significant potential to reduce the prosecution bias in judicial practice and humanize the trial.
In general, we can conclude that the jury institute in Kazakhstan has “gone into a skid” and is not working at “full capacity”. This is due to three fundamental reasons:
- A mixed trial jury model, according to which the judge, together with the trial jury, determines the guilt of the defendants “fails” in the implementation process. In Kazakhstani realities, judges have an active and passive influence on trial jury decisions.
- The limited list of criminal cases available for trial jury does not make it possible to expand the practice of using this institution. As a result, only less than one percent of criminal cases in Kazakhstan are heard by jurors.
- The abolition of trial jury absolutory sentences undermines the institution’s reputation in the public eye.
Recommendations:
For the effective functioning and strengthening the role of the trial jury institution in the judicial system of Kazakhstan, the promotion of the following measures is necessary:
- The transition from a mixed model of trial jury to the classic version, according to which the trial jury determines the guilt of the defendant, and the judge, measures the punishment. Only with independent trial jury verdicts, transparency and justice will be ensured;
- An increase in the jurisdiction of a trial jury to the category of all core crimes. This measure will significantly expand the applicability of the jury institution in Kazakhstan;
- Revision of laws and regulations governing the abolition of absolutory sentences by trial jurors. This measure will enhance the significance of trial jury verdicts.
This article was prepared as part of the Giving Voice, Driving Change – from the Borderland to the Steppes Project implemented with the financial support of the Foreign Ministry of Norway. The opinions expressed in the article do not reflect the position of the editorial or donor.
Cover photo: tengrinews.kz
[1] https://russian.doingbusiness.org/en/data/exploreeconomies/kazakhstan
[2] https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019
[3] https://freedomhouse.org/report/freedom-world/2019/kazakhstan
[4] Working group to discuss the draft law “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Participation of Jurors in Criminal Proceedings”. 2005 January.
[5] See: Kogamov M.Ch. “Actual issues of the criminal process of Kazakhstan: on the jury trial and authorization of arrest by the court, the problems of initiating, an additional investigation, termination of the criminal case for non-rehabilitating reasons.” Ed. A.V. Smirnova. SPb. 2005 192 p.
See also: Akhpanov A.N. Not “tight”, but “sworn.” Kazakh truth. 2005 February 15
[6] Introduction of the trial jury in the Republic of Kazakhstan: issues of theory and practice. Round table materials. / Under the total. Ed. Cand. Legal sciences D.I. Nurumova. Almaty, 2005.S. 29.
[7] “The continental jury trial model will complicate the trial, said MP Dariga Nazarbayeva” Newspaper Caravan. 2005 October 11th.
[8] The Supreme Court is the developer of a bill with a mixed court model, which was later adopted by members of parliament
[9] See: B. Dembaev “This is a court with the participation of the people” Novaya Gazeta. 2006 June 9. (http://www.ng.kz/gazeta/219/specnaz/001.shtml)
[10] Law of the Republic of Kazakhstan on Trial Jurors. From January 16, 2006
[11] New edition of part 1 of article 631 Criminal Procedure Code. From July 4, 2014
[12] http://www.oecd.org/gov/access-to-justice.htm
[13] Tocqueville A. Democracy in America. M., 2000. 212
[14] https://forbes.kz/process/tokaev_oboznachil_svoi_prioritetyi_na_postu_prezidenta/
[15] https://informburo.kz/novosti/zhakip-asanov-rasskazal-o-semi-kamnyah-sudebnoy-sistemy.html