Opción, Año 33, No. 85 (2018): 447-474
ISSN 1012-1587 / ISSNe: 2477-9385
Features of the legal status
of judges: Kazakhstan experience
and foreign realities
Zhanar Yessembayeva
Humanitarian and Law Department, Turan University,
Almaty, Kazakhstan asanovaaigerim2015@mail.ru
Abstract
The special value in the constitutional state carries out functioning of the judicial authority
which is the guarantor of justice implementation, supremacy
of
law and rule of law. The main role in the judicial authority
mechanism is assigned to the judge as the maker of justice. In this regard, legal status of the judge demonstrates the level of development of judicial
authority, quality of justice and its independence. The main requirements, imposed to the candidates for judges in Kazakhstan, are highlighted in
article. An author is revealed the current problems. The comparative research of foreign experience is conducted.
Keywords: judicial authority; candidate requirements
to judges; legal status of judges; judicial reform; judicial education; judicial
career.
Recibido: 10-01-2018 Aceptado: 09-03-2018
Rasgos del estado jurídico de los jueces:
Experiencia
de Kazajstán y realidades extranjeras
Resumen
El valor especial en el estado constitucional lleva a cabo el
funcionamiento
de la autoridad judicial que es el garante de la implementación de la justicia, la supremacía de la ley y el estado de
derecho. El papel principal en el mecanismo
de la autoridad
judicial se le
asigna al juez como el hacedor de justicia.
En este sentido,
la condición jurídica del juez demuestra el nivel de desarrollo de la autoridad judicial,
la calidad de la justicia y su independencia. Los principales requisitos, impuestos a los
candidatos a jueces
en
Kazajstán, se destacan en el artículo. Un autor revela los problemas actuales. Se lleva a cabo la
investigación comparativa de la
experiencia extranjera.
Palabras clave: autoridad judicial, requisitos de los candidatos para los jueces, estado legal de los jueces, reforma judicial, educación judicial,
carrera judicial.
1.
INTRODUCTION
Since independence
of
Kazakhstan, during twenty six years the
legal reforms, including judicial, are constantly being implemented.
Judicial authority in the Republic of Kazakhstan is constantly improved, as evidenced
by
a number of ongoing reforms in the country, aimed at
protecting of human rights, availability
and
quality of justice, its efficiency,
speed and transparency. All legal system of the country was reconstructed on the new course with transition to a market economy. All main legal
institutes were reformed. Special attention was
paid to
Features of the
legal status of judges:
449
Kazakhstan experience and foreign realities
improvement of judicial authority, in particular, to the legal status of judges. In 2011 the Head of State adopted the Plan of the nation - 100 steps on realization
of the five institutional reforms (BIKO, 2013), in
Kazakhstan it was undertaken
the
legal reform, within which there is
provided the obligatory 5-year experience of participation in trials for candidates for judges, it was introduced the system of situational tests for check of professional
skills and abilities and also passing of the one year
traineeship in the courts with payment of a scholarship,
it was provided passing of the year test period after completion of the one year traineeship.
Essential changes concerning
requirements to judges were made to
the
Constitutional Law “On the judicial system and the status of judges” (hereinafter - the Constitutional Law) in 2017 (LIDIA, 2008). Kazakhstan
is planning
to enter by 2050 in thirty developed countries
of the world.
Implementation
of
this plan provides reforming of economy, the social sphere, state apparatus, personnel policy, etc. One of the strategy purposes
“Kazakhstan – 2050” is high-quality
improvement of the personnel structure of public service through introduction
of improved methods of selection and vocational training
(KALDIYAROV, et al.,
2014). The fulfillment of this goal directly affects the improvement of the judiciary
that in general promotes to observance of the supremacy of law, rule of
law
in all spheres of society life. The court as “a litmus paper”
reflects the
level of society
development, its value, authority of society. Formation of the personnel policy concerning judges has to be based on the principles
of
a meritocracy. It is necessary to provide courts with the most qualified
personnel which
will manage
independent and
qualitative
justice. It
should be improved the process of selection of judges, having made it the most
effective and
transparent. Modernization has
to
concern judicial
career, all stages and the bases of growth of which are subject to the
maximum legislative regulation. The career of the judge has to depend
only on his professionalism,
honesty, incorruptibility, impeccable reputation and trust of society (KULZHANOVA, 2012). Legal development of this sphere of the legal relations is inseparably linked with
the
world principles of functioning of judicial authority. Kazakhstan
actively cooperates with the world community, studies the international
experience and foreign practice, using the progressive legal ideas and implementing in the national legislation positive examples in these or
those branches of law, including increase in age qualification, introduction of special experience and the traineeship for candidates. At the same time,
legal status of the Kazakhstan’s
judge requires further improvement for
strengthening of the authority of judicial authority, increase in level of justice and trust of society to the institutional structure of the judiciary. The main indicators of work of the court are the supremacy of law,
independence of judges and the impeccable authority at the people, which
have to form the basis of improvement of judicial policy.
2. DISCUSSION
In a correct and correct job selection, a variety of factors, including
personality traits, values, interests, skills, family circumstances, community conditions and... should be considered for each individual. One of the most important of these factors is personality traits. A true
understanding of each person's personality is a complex process requiring
expertise
and time. Of course, each person has its own unique
characteristics, even those who somehow have the same personality type,
are still different in some cases.In
general,
there are always successful people of different types in all occupations, and one cannot exactly say that only certain person types are successful in this job. But in the research
that took place, the personality bridges introduced for this job generally tended to be more desirable
and
had more job satisfaction
(AKHMETZAKIROV, et al., 2016). According to the legislation of
Kazakhstan,
it is necessary to have the thirty-year age in order to become the judge. In the current year the changes
are
made in the Constitutional Law, which fixed
the increased thirty-year age qualification for candidates for judges. These changes reflect the world practice,
providing the age restrictions
to candidates for judges. Originally in Kazakhstan
the
person who has reached twenty
five years could become the judge. Thus,
Kazakhstan adopts world practice
when
judges are
become
at
more mature age. The age qualification
as one of the requirements for judicial appointments is the mandatory qualification requirement abroad. The age, fixed for judges in each country, is determined
differently. The minimum age - 25 years is determined in Norway;
26
years - in Poland; in France,
England there
was a
practice when people
younger 40
years are
not
appointed (DAVIS, 2002).
The Kazakhstan’s law, besides the minimum age, provides the
maximum age limit for judicial appointments - 65 years. This age can be
prolonged no more than for 5 years by the chairman
of SC RK with the consent of SJC RK. This situation corresponds to
foreign practice in general. In the USA the maximum age for judicial appointments is not determined at all, at the same time, there are imposed requirements for existence of obligatory long-term length of service as the professional
lawyer that assumes achievement of mature age. The age limit is 72 years
in Great Britain; in Norway – 70; in Japan, Germany-65. Existence of life experience is the important requirement for the person who is carrying out justice over other people. Concerning judges of superior courts, it is fixed higher age qualification.
Usually, the text of constitutions specifies age from which the citizen can become judge of the constitutional
court, in Armenia – from 35 years; in Belgium, Slovakia, Turkey, South Korea, and Portugal – from 40 years; in Hungary – from 45 years. The age
qualification to judges of the regional courts and SC RK is
not provided in
Kazakhstan, there are requirements
concerning length of service: for
regional judges – length of service in district court not less than 5 years and 10 years on legal specialty; for judges
of SC RK – not less than 20
years of a legal experience, from
them 5 – in district court and 5 – in
regional.
The
important
requirement
to the candidate for judges is
existence
of the higher
legal
education. The
Latin
proverb says: “Ignorantia
judicia est calamitas innocentis” – “ignorance of the judge - disaster for the innocent” (LAZAREV and CESNOKOVA, 1966).
Proceeding from it, judge must have high educational level.
Today, educational programs of higher education are directed to
training of highly qualified personnel according to requirements
of economy branches with conferment of degree “bachelor” or awarding qualification “specialist”
(article 21 of the Law of the Republic of Kazakhstan “On Education”) (KHAMZIN
et al., 2016).The higher legal
education in Kazakhstan assumes the existence of the bachelor’s degree of law, demonstrating the
graduation of a four-year
course
in
a
higher
educational institution. At the
same time, the
Kazakhstan’s education system allows to graduate the second higher education on part-time form of training within two years in the presence of the first education.
So,
it is
possible to get diploma with the bachelor’s degree of law, having had two-
year training. This situation of course is the disputable and demand the development, as an opportunity
to work as the judge, having graduated from institute on part-time form of training in two years, raises reasonable
doubts. It should be noted that the questionnaire for candidates for judges at filing of application for participation in
a
competition
for
judicial appointments, provides a point - whether the higher education is second. Thus, the competition commission
estimates – whether legal education is
basic or the second. World practice in this case is not unambiguous.
Examples of France and Italy on theoretical training of candidates for judges deserve attention. So, the requirement that candidates for judges
have to graduate the specialized magistracy
is provided in a number of
foreign countries, that is, they must have the master degree of law, among them France, Italy and other countries.
For example, enrollment in the French National School for the Judiciary, which
is annually graduated about two hundred judges and
prosecutors, is carried out on a competitive basis. The organic Law “On the Status of a Magistracy” of 1958 provides as requirements for entering in the French National School for the Judiciary: the national diploma of
the
higher education or other document or the diploma the appropriate
level, which is officially recognized by the decree of the State Council;
citizenship; capacity and high moral qualities; discharge of military duty
in accordance with the law; state of health suitable for performance
of official duties (MUNIZ-ARGUELLES
and FRATICELLI-TORRES,
1985). The enrolled candidates are appointed as the students by a decree of the Minister of Justice,
the contract is concluded with them, on the basis of which they are obliged to work in the sphere of justice not less
than 10 years. Students of the French National School for the Judiciary are
the
judiciary,
they have the right to take part in judicial activity, however without right to sign, and the state maintenance
is paid to them. Students are obliged to keep an official secrecy. They take the oath before the
Court of Appeal before participation in
judicial activity.
The
general
course in the National magistracy goes for 31 months. An important stage of training
is the “external traineeship”, which is realized outside of legal
agencies of
France, at the enterprises,
in
local
governments, the prefecture, foreign
legal agencies, and other organizations. Direct training is carried out at School during 8 months. Feature of training is studying of expert work of psychiatrists, forensic medicals, psychologists, financial
experts. Students of School obtain information on questions of the organization, functioning and financing of legal agencies, bar associations,
court registrars, and other services. Legal disciplines
are
not taught
practically, except for criminal and civil procedure, judicial ethics and also
related subjects, which knowledge is necessary
for performance
of professional
duties. The next stage of training is traineeship in judicial institutions, for 14 months (familiarization with court activity of all
instances, investigative bodies and prosecutor’s
office, police and gendarme services, institutions of legal protection for minor, correctional facilities, bailiffs). The traineeship at lawyers within two months gives the chance to the students to get a practical study of their power and duty.
Before the
final training stage
the
students take the
tests and
a
qualification
examination. The list of the offered positions is provided to the students, on the basis of the received estimates
and results on
traineeship.
As soon as they make the choice, they are distributed on
groups, proceeding from the chosen specialization.
The five-month
program provides profound studying of the theory, new acts,
communication with the practicing magistrates. And the
final
stage
-
traineeship in legal agencies at that position which the student will be appointed further. After graduation all students, irrespective in what order they were entered to magistracy schools, compete on equal conditions in
the
procedure of referring to the list of persons for the purpose of
promotion in the judiciary. The qualification jury provides to the students
the
certain qualification
if they have passed a competition and are considered as prepared
for
performance
of judicial functions.
The
duplicate
of the list with surnames of such graduates is given to the Minister of Justice who makes the decision about its publications in the Official bulletin. Jury discharges the student for judicial appointments and can oblige him to complete a training course again, if they consider that
the
personality is capable to master it in case of inadequate drawing up
competitive examination.
It should be noted
that special attention is paid to assessment of the
general culture of entrants. The French consider that only legal knowledge of the judge is not enough, they would
like to see in future
bearer of judicial authority not only the great expert, but also educated, cultural person. At the same time, it should be noted that in some countries, for example in Great Britain, existence of legal education is not obligatory for
magistrates. In Germany, existence of
legal education
is
not
the mandatory
requirement for nonprofessional judges-lay judges (Schoffe). I believe, that justice implementation at least by the master of law causes credible. Experience of France and Italy undoubtedly
is subject to use in
improvement of the national legislation. Since 2016 in Kazakhstan there is
functioned the Academy of Justice at SC RK, which is the public institution, realizing the educational programs of postgraduate education,
carrying out retraining, professional development of personnel of judicial system and scientific activity (CHESTERMAN, 2002).
Earlier, training
of
the specialized
personnel was carried out by Institute of Justice at Academy of Public Administration at the President of the Republic of Kazakhstan.
Passing the qualification examination in a specialized magistracy is a priority at competitive selection to the judge’s
position. However, the requirement to candidates for judges concerning the obligatory graduation
of
the specialized
magistracy
in Academies of
Justice is not provided by the legislation
of
Kazakhstan. The general
tendency
comes down to the fact that in the future, it is possible that the graduation of the Academy magistracy will be the mandatory requirement
for candidates for judges. The
major requirement for candidates for judges is possession
of
high moral qualities and impeccable reputation. These
requirements
are
natural to maker of justice. Only the person with “pure thoughts and hands” and
“fair heart” can
judge
other people. In
Kazakhstan access for the
judge
position
is
closed
to
the persons
dismissed from the judge’s position, from law enforcement
agencies or
from other public service for the discrediting offenses and violation of the
law
of the Republic of Kazakhstan on duty. Without a doubt, that the requirement about high morality
to all candidates is shown not only in
Kazakhstan,
but also abroad. So, in the Basic principles of the United
Nations concerning
independence of judicial authorities it is proclaimed
that “the persons,
selected to judicial positions, must have the high moral
qualities and abilities, and also
the corresponding training and
qualification in
the
field
of
law”. The Bangalore principles of judge behavior regulate that the principle of competence for judges is one of the
standards
of ethical behavior for judges. For
example, in England,
existence of disciplinary punishment for violation of professional ethics at
the
lawyer deprives of him the right for judicial appointments. In the USA
the
Commissions
for judicial appointments consider not only professional
skills of the applicant, but also such qualities as diligence, dedication,
communicability,
restraint, understanding of social needs, etc. Judges of
superior courts must have oratorical, organizing
abilities, teamwork. An important role in the checking
process is played by public organizations
and the press. FBI
analyzes the
candidate’s relations in
family, with neighbors, colleagues
(there are conducted the discussions with them for
this purpose); his political and professional past, nominees officially allow to check their tax
and credit history by FBI
agents. In
parallel
the candidate for judges undergoes testing in the Senate Judiciary Committee. The Committee pays special attention to the thoughts which were
expressed earlier by the potential member for the Supreme Court. Along with it, the American Judges Association appoints special commission of
15 volunteers, who analyze the verdicts rendered
by the candidate for members of the Supreme Court, and thus define degree of his
professional competency. We have the phrases about characteristics which the judge has to possess “the judge has to be wise to exclude silly decisions, and to have conscience not to be cruel at decision”. This phrase discloses internal essence of the judge.
Meanwhile, the
Kazakhstan’s legislation
does
not
determine
criteria and an order
of
assessment of moral qualities and reputation of the candidate that is subject to standard regulation. Besides, the Kazakhstan legislation
does
not open a concept of impeccable
reputation and how check of reputation is carried out. The following mandatory requirement for candidates for judges is existence, as a rule, of five years of work
experience as
the
secretary of the court session, amicus curiae (assistant of
court), the prosecutor, the lawyer or not less than ten years of work
experience by a legal profession.
The specified norm is entered into the Constitutional Law. Introduction
of this requirement is result of judicial reform which reflects global trends. Some countries
prefer to form
the
judiciary by the lawyer personnel. Abroad, at selection of candidates it
is preferred often employees of the prosecutor’s
office, the bar and courts.
For
example, the Legislator
of England and Wales provides
the
need of length of service as the lawyer from 7 to 15 years for candidates for
judges. In Great Britain the judges of the supreme courts could be only lawyers of exclusive category - barristers,
but now for judicial appointments of higher
level at certain
conditions
is
also
given to solicitors. Judges of the Supreme Court are appointed from among barristers with not less than 10-year experience,
district judges - from
among barristers with the same experience or from
among the recorders, holding this position not less than 3 years. In turn a recorder, i.e. the judge
who is partially worked in this quality, there can be appointed
a barrister
with
not
less than 10-year experience or the solicitor with the
same experience (ROBINSON,
1968). Judges, along with lawyers, enter into
legal elite of society. Throughout centuries (since XIV century) lawyers-
practitioners supported Parliament against absolutism
(monarch). Independence
of
judges is among the fundamental principles of the state. All English judges are individuals of the practicing lawyer. Many US
states also place emphasis on the experience necessary for judicial appointments. In Ohio, for example, the person has to work as the lawyer
of
at least 6 years in order to become the judge. Though the professional
experience can
be very different
–
one
judges worked in public
institutions, others – in big
or small law firms. Besides, in America judges
can enter judicial system at any level – both
judges of the Supreme Court,
and
subordinate instances. This difference of requirements as notes helps
to provide versatility of experience of judges. Only the person, possessing
10-year length of service as the judge, the prosecutor, the lawyer, can be the member of the Supreme
Court of Poland. Separate qualification requirements to judges are provided by the Constitution of Malta. In this
country, nobody can be recognized by possessing qualities necessary for judicial appointments of the Supreme courts if during the twelve-year period
or
the periods, in the sum which are twelve years he was not the practicing lawyer in Malta or he was not served as magistrate
in Malta, or
he
was not a lawyer during part of this term
and as magistrate - part of
period.
In Denmark judges are appointed from among lawyers with length
of
service of 15-20 years in courts, prosecutor’s
office, etc. In the Netherlands, it
is required to
have
legal education, graduation of the
Academy of magistracy or to work in court registry, legal profession, Service of public charge of 7-8 years in order to become the judge. The position
of the federal judge of Brazil is appointed as a public competition
in which the organization of lawyers of Brazil participates. Thus, the world practice
was
developed in
such
a
way that the
lawyer
having
sufficient experience in the sphere of law enforcement, having experience
in the sphere of legal proceedings can only become the professional judge.
There is no doubt the correctness of the similar requirement.
The mandatory
requirement, according to the Kazakhstan’s legislation, is passing the qualification examination in order to become the
judge. Exam at candidates for judges is held by the Qualification Commission of SJC RK. Members of the commission are appointed by
SJC RK which includes:
five experts from among lecturers in law,
scientists-lawyers;
three judges, including retired judges, delegated by judicial jury from their structure on a
rotational basis; on one
representative of the Prosecutor General’s Office, the
Ministries of
Justice, legal professions; other representatives
of
the public. The
commission is headed by the chairman. The structure of the Commission
can include the
foreign experts. The structure of
the commission
is updated each two years. The persons recommended in the structure of the
Commission
must have professional knowledge
in the field of law,
experience
on legal specialty
not less than ten years and to have impeccable reputation. Formation of the qualification commission
deserves great attention as it estimates the level of theoretical and
vocational training of the candidates.
In
this connection, it is necessary
to improve the procedure
of
formation of the commission, applying foreign
experience. For example, in some countries the members of the commission are chosen. So, members of the Kazakhstan’s commission
can
be chosen at a congress of judges. The chairman
of
the commission should be determined as a neutral person-moderator, having no right to
vote. Members of the
commission have to elect the chairman of the
commission.
Members of the commission from among lecturers in law should form of number of the best teachers of higher education institution.
It is necessary to select
similarly in the commission of the prosecutor who is the best in a profession, or the lawyer, etc. Approximately
the same
requirements
are
fixed by the European charter about the status of judges of 1998 according to which, for adoption of any decision on the issue of
selection, employment, appointment, service or the termination of
functions for any judge, where the status provides participation
independent from executive and the legislative authority of the instance,
which not less than a half of members
are
made by the judges, elected the
colleagues according to the rules, guaranteeing
the
widest representation. The decision on appointment of the selected candidate for a
position of the judge and the decision on a job placement for court are accepted by
independent instance or according to its offer, the recommendation,
from its consent or.
The constitutional
Law determines categories of the persons,
exempted from passing a qualification examination. The persons which were earlier working as permanent
judges not less than five years and within four years from the date of dismissal, shown willingness
again to
hold the judge’s
position,
except for the persons, dismissed judges for
negative motives concern
them; the persons who graduated education in a specialized magistracy
are
exempted from passing a qualification examination within four years from the graduation date in a specialized
magistracy. According to the Constitutional Law, there are not allowed to passing qualification examinations of the person who
were dismissed from the judge’s position, from law enforcement
agencies or from other public service for the discrediting
offenses and violation of the law of the Republic of Kazakhstan on duty. The result of passing a qualification
examination
is valid within four years from the date of passing an
examination. That is, during the specified term, persons have the right to
participate in
a
competition. Persons who failed passing
qualification
examinations are admitted to their repeated passing not earlier than in a
year. The procedure of passing a qualification examination includes three
stages:
1) computer
testing for knowledge
of the legislation of the Republic of Kazakhstan and
ability of its
practical application; 2) an examination of the applicant and ability of their practical application with
the examination cards, modeling concrete situations from judicial practice;
3) psychological testing.
Testing in Kazakhstan is held in SJC RK. This condition can be improved,
holding testing in the National Testing
Center and at the commission. Besides,
in Kazakhstan
there are no Regulations of
admission of a qualification examination to the judge. The examination of
the
applicant and ability of their practical application according to examination cards has to be thoroughly
regulated. In this connection, it is necessary to develop the corresponding
rules, regulating specifically each
stage of examination. Examination
cards have to be sealed. They have to
be
unpacked directly at examination at members of the commission. Other
option, after opening of the envelope at the commission the cards are
located in a special box, all cards mix up by the secretary
of the
commission, and the candidate pulls out the casual card from the box.
Such procedures will allow excluding any intervention of the interested
persons. The necessary requirement for the applicant in the judge is the medical examination,
confirming absence of the diseases, interfering execution
of the professional
duties of judge. According to
the
regulations, it is determined the list of the diseases, interfering execution of professional
duties of the judge. This list provides 33 diseases, such as the diseases of heart, hemoblastosis, cirrhosis, chronic diseases of kidneys
with the phenomena of a chronic renal failure 2-3 stages, severe forms of
psoriasis, disease of endocrine system and others. Meanwhile, the doctor’s certificate of the 086U form, approved by the order of the Minister of Health of the Republic of Kazakhstan
“On the statement of forms for
primary medical documentation
of the organizations of health care” of November 23, 2010 No. 907, provided for candidates for judges, specifies
the performing of medical examination
only by the following experts:
therapist, surgeon,
neuropathologist, oculist,
otolaryngologist and also
fluorography study. This fact demonstrates that the existing doctor’s certificate, provided for candidates for judges for participation in a
competition does not reflect the authentic data concerning the state of health of the candidate (it is not carried out examination
by
the narrow experts, there are not provided the corresponding blood tests, ultrasonography, etc.), not allowing to
fix
the diseases, which
would interfered execution of the professional duties of the judge. Besides, there
are
not performed the medical examinations of judges during
implementation of judicial powers, allowing to reveal diseases, interfering
execution of professional duties of the judge.
In this connection,
the medical
examination of candidates for judges requires improvement for obtaining authentic data about the health
state. It is necessary to determine the medical institutions, which have to carry out systematic medical examination
of judges and also an order of
medical examination, to carry out periodic assessment of the health state
of judges. The candidate
has to pass the traineeship in Kazakhstan for judicial appointments. The main objectives for passing the traineeship by the candidate for judges are studying of the work specifics in local courts,
acquisition of necessary practical
and organizing skills
for
the judge position.
Passing
the traineeship is carried out in order to study the
business, professional and moral qualities of the trainee-candidate
and determination of the prospects for implementation
of
judicial powers by him. The trainee-candidate is given the leave without pay during passing the traineeship. The salary
of trainees makes 70% of an official salary of the regional judge with work experience up to 1 year. Total period of
passing the traineeship makes one year, so eleven months in the district or
equated to it court (for five months in civil and criminal court,
1 month in
administrative) and one month in regional court. The candidate has to
receive the conclusion
of
a plenary session of regional court upon
completion of the traineeship. The requirement about passing the traineeship is not extend to the persons, who graduated and passed a qualification examination in the
specialized magistracy Academy
of Justice at SC RK, who are exempted from passing the traineeship within
four years from the
graduated date,
and also the candidates who
are serving judges. The norm on passing the traineeship is differed in novelty and it works since 2017.
It
was not provided by the Kazakhstan’s
legislation before. Kazakhstan follows experience of number of the developed Europe countries
in its realization.
For
example, in Germany candidates pass a two-year traineeship, in Poland not less than one year.
Candidates for the judge’s position also pass the traineeship in Greece.
In Italy, the person has to pass the traineeship as the court auditor in order to become the judge or the prosecutor, and for it there is held a competition by results of three written examinations (on the civil and
Roman law, on criminal law
and on administrative law) and 8 oral
(on
the Roman law, civil law, civil procedure,
criminal law, criminal procedure, administrative
and
constitutional law, labor and social legislation, ecclesiastical
law, international law and fundamentals of statistics). It is necessary to receive not less than 12 balls from 20, and on oral – not less
than 6 of 10, and
totally not
less than 91
points on each of
written examinations. Persons who are not younger than 21 and not more 30 years are allowed to the competition,
having the diploma of law department of
the
university. If the Supreme Council of the Magistracy considers that
the
person does not meet the requirements
of high morality and impeccable behavior, he is not allowed to the competition
and cannot challenge this opinion. A competition is held in Rome, as a rule, once a year. The magistrate
did
voluntary termination
from the magistracy system, will not able
to be admitted again. This provision underlines corporate character of
the
magistracy. The German judicial system has the features. The professional and nonprofessional judges carry out activity. Professional
judges are specially prepared persons having legal education and who
passed the examinations
fixed by the law (referenda and assessor) and it
means: the person has gained “ability
to hold the judge’s
position”. Legal
training begins with studying of law at the university and lasts not less
than 3, 5 years. The first examination
(referendary) - oral and written is
organized at the end of training. This exam is taken by members of the commission in one of the examination departments of court administration
of the Ministry of Justice of province, but not at the university where was training. If the examinations are passed successfully, it is fixed the practical traineeship - preparatory service (referendary
term) lasting two years, that is also regulated by provisions of the law. The obligatory two - year traineeship
is provided
in
such
institutions as:
1) court
in
civil proceedings; 2) courts of criminal jurisdiction; 3) institutions of administrative
activity; 4) the practicing lawyers. Besides,
the trainee is
given the chance of the alternative
choice to choose one more institution
for additional traineeship from the following
list: 1) one of institutions
of an obligatory traineeship; 2) one of authorities of Federation or province;
3) notarial office; 4) one of the courts of specialized
jurisdiction specified in the Constitution;
5) labor union, business associations, self-governing
body
in the field of economy or social or professional sphere; 6) industrial enterprise;
7) international,
interstate or
foreign organization, foreign
lawyer; 8) other institution where can be provided rather high level of
practical training of the trainee in the sphere of law enforcement. It should be noted that the trainee must have practice
not less three months,
and
in institution
for choice - not less four - six months in each of institutions, obligatory for the traineeship. Referenda gets a salary.
The referenda passes the second state examination
(assessor) in
examination
department of the province at the end of the preparatory service. The main attention during this examination is paid to knowledge
gained by the student during the traineeship. Examination
in the majority consists of an oral part, but the legislation of the corresponding federal
province can be also provided a written part of examination.
Types of examination are equivalent. The referendary has an opportunity
to get the
judge’s position after successful passing the
second
state
legal exam
(assessor examination) in examination department. He can be appointed as judge at once. However for “lifetime appointment” as judge he has to serve a trial period lasting not less than three years during which he holds
a position of the independent judge with all rights and duties. But there
can
be cases when he is appointed
to the judge’s
position, having worked
in other legal bodies.
Not
only judges, but also all German lawyers have
such
training. It is integrated legal training as a result of which along with an opportunity to hold the judge’s position – there is gained the qualification, allowing to work as the prosecutor, the lawyer or the notary.
The novelty of the Kazakh legislation is the introduction of the polygraph logical examination which is representing the procedure of poll consisting
in registration
by
means of special medical sensors of the separate
physiological
reactions of the person which are arising at psychophysiological survey), having advisory nature.
The persons who successfully passed a qualification examination pass a polygraph logical examination for the purpose of obtaining
additional information and check of
reliability of
the
reported
data. Among research problems
is detection of: 1) illegal intentions; 2) the
hidden
disorders
of behavior,
negative
dependences,
the use of
the narcotic, psychotropic and other psychoactive substances, causing mental
and
physical dependence; 3) concealments or distortions of personal data, data on income, property and obligations of property
character, existence
of
dual citizenship, use of false documents; 4) earlier being available facts
of
commission
on corruption offenses, transfer of classified or official
information to unauthorized persons; 5) contacts with the forbidden public associations, the criminal and terrorist organizations or participation in
commercial
structures
if
this was not part of
their official
duties previously; 6) abuse of official authority. Polygraph is the technical device intended for registration in the poll process for the person of dynamics on physiological reactions (breath, cardiovascular activity, skin and galvanic
reaction, physical activity, a facial expression
and another) in response to
the
shown verbal and visual incentives,
displayed in an analog and (or)
digital form). The examined persons pass the examination in Committee
of National Security of the Republic
of Kazakhstan on
the SJC
RK direction. It should be noted that the conclusion
of
the polygraph has
advisory character. As for judicial career, this sphere of the legislation demands additional settlement. The law provides requirements to judges of regional court - length
of
service in the sphere of law not less than 15 years, including not
less
than five
years
of
work as
the
judge. It is necessary
to receive the positive conclusion of the plenary session of relevant
regional court in order to become the judge of regional level. Besides, it is necessary to receive the guarantee of two judges of superior
court and one retired judge. Concerning SC RK judges, there is provided the requirement in the form of the legal experience not less than 20 years,
including length of service by the judge – 10 years, from them the judge
of regional court – 5 years; existence of the positive conclusion
of the
plenary session of SC RK; the guarantee of 2 judges of superior court and
one retired judge. SJC RK makes selection of candidates for vacancies
of the chairman and the judge of district
court, the judge of regional court and the judge of SC RK
on
the competitive basis
from among the persons, who submitted the application for participation in a competition. As
priority
category to positions of the chairman of district court, the chairman and chairmen of judicial boards of regional court,
the
judges and chairmen of judicial boards of SC RK, the Law provides for the presence of a judge in the personnel reserve.
The above demonstrates that the Kazakhstan’s
legislation does not
regulate
the
unconditional priority
bases for advance
of career. It
is
possible to carry
to their number:
excellent performance in work (absence of cancellations or changes in judicial acts, absence of complaints);
encouragement, awards, diplomas, etc. for excellent job; knowledge of foreign languages;
existence of additional education or academic degree; absence of disciplinary punishments, etc.). The foreign judicial policy in
Recommendation No.
R (94) 12 of the Cabinet of Ministers of the Council of Europe provides that: “All decisions, concerning
the professional growth of judges, have to be based on objective criteria and the principle of competitive selection, and the office growth of judges has to depend on
their personal merits with due consideration of qualification, moral
qualities and working capacity”. The European Charter provides about the judge status that in case criterion of promotion is not the length of service,
the system of official increase is based only on the indicators of quality of
work and merits, noted at execution of the powers assigned to the judge and determinate by the objective estimation, which is shown by one or
several judges, and subject to discussion with the discussed judge. Conclusions on promotion are given by independent instance, according to its
offer
or
from its
consent. The judge, whose candidate is not made on promotion according to the solution, must have an opportunity
to address
with the complaint
to the specified
instance (p. 4.1 of the Charter). Thus, the
right of
the judge for career has
to
be exercised
in the
order,
established by the
law,
regulating all bases and the
procedure
of promotion of judge for a
ladder of advancement.
3. CONCLUSION
The creation
of a state governed by the rule of law in Kazakhstan
has
been carried out for more than twenty years. Much attention is paid to
reforming of judicial authority. The Legislator always adheres to increase in
requirements, imposed
to
judges,
regarding increase in
age
qualification, introduction of five-year experience in the spheres, which are directly connected with legal proceedings, training and a
polygraphological
examination of the candidates. Meanwhile, legal status of the judge is subject to further development and improvement in order to
ensure the qualitative, professional, independent and effective justice
promoting to increase in the credibility of the judge in society. The author
considers that there is necessary to improve the system of formation of the Supreme Judicial Council of the Republic of Kazakhstan (hereinafter –
SJC
RK) and the qualification commission at SJC RK by their election;
determination of the requirements to SJC RK members; development of regulations for admission of the qualification
examination and
improvement
of the procedure for taking exams regarding the transparency of the procedure; the introduction of the requirement for the
compulsory graduation of a specialized magistracy of the Academy of Justice at
the Supreme Court of the Republic of Kazakhstan (hereinafter – SC RK) for candidates for judges; establishment as the requirement
to judges of compulsory basic four-year legal education; reforming the
system of admission and training in the Academy of Justice at SC RK and increase in requirements for entering to Academy; creation of the doctoral studies for judges in Academy
of
Justice at SC RK; regulation
of
the priority bases for career development of the judge; determination
of
the order of medical examination for judges.
The reforms undertaken in the country in the sphere of judicial authority are aimed first of all at providing effective, professional,
competent, available, fast and fair justice. In Kazakhstan
justice is more and more improved with each reform. Summarizing the last reforms, it is
possible to claim that the Legislator: increased age qualification to candidates for judges, determined obligatory existence of five-year length of service in the spheres which are directly connected with legal proceedings
(prosecutor’s
office, legal profession, clerks of courts), fixed the passing of the year paid traineeship,
introduced the polygraphological
examination for candidates.
Reforming is carried out in Kazakhstan gradually. Foreign experience is investigated. Positive examples are
implemented
in the national legislation. Of course, judicial authority in
Kazakhstan needs to be improved and further.
The carried-out comparative
analysis
of the
Kazakhstan and foreign legislation allows making the following suggestions for improvement of the Kazakhstan legislation. It is necessary to regulate
criteria for evaluation of SJC RKof respect by candidates of moral standards and morality. It is the major criterion, determining essence of
the
judge. However, the current legislation
does
not regulate how council estimates and checks reputation of the candidate (for example, the
characteristic from the working place, study, neighbors, the district police officer, family, verification
of
compliance with legislation (penalties, offenses), the analysis of performances and statements in media, etc.). It is
necessary to determine in the Law the concept of impeccable reputation; to establish data which are subject to the investigation as a result of
special check of candidates, having defined consequences. Besides, it is
possible to introduce the selectivity of SJC RK members and the qualification commission
at
SJC RK.
Election of
member-judges of council and commission has to be carried out annually at the congress of judges by judges of all levels. The structure of council and commission
has
to be quantitatively determined (representatives of judges of all levels have to be presented as members of the council and commission: the district,
region, SC RK), including concerning
the
public representatives
(legal profession; representatives
of
parliament, science, media, non- governmental organizations,
etc.). The membership
of the
members should change annually. The law does not determine the requirement to member-judges of SJC RK. These requirements need to be determined
(length of service, experience,
reputation, an academic degree, etc.) in a
legislative order. Similarly it is necessary to establish requirements for members of the qualification commission.
It is necessary
to establish that chairmen of the Council and commissions carry out functions of the moderator and have no right to
vote.
Chairmen
of the Council
and commissions have to be
elected directly only by members of council and the commissions. The order of passing the examinations
on
the judge has to be regulated by the
corresponding
rules, determining accurately the procedure of taking the
examinations for an exception
of the facts of any interested intervention. Computer testing for knowledge of the legislation should be held outside of walls of Council in the National Testing Center. The procedure
of
oral examination
should be regulated in details. Candidates for judges of all levels have to be present at SJC RK meetings. It is necessary
to improve the procedure for selecting candidates by developing a rating on points
that reflect all the advantages
of
the candidate in order to ensure
transparency
(for example, length of service over 10 years – 5 points; an
academic
degree – 5 points;
additional
education
–
3
points, etc.).
Selection needs to be made on points among the candidates who gained
the
bigger number of points. For this purpose, the rules of assessment of
advantages of the candidate for judges are subjected to development. The idea of introduction of the requirement
about the obligatory graduation
of the specialized
magistracy of Academy of Justice
at SC
RK is relevant for
candidates for judges. It is necessary to reform the training system in
Academy. It is necessary to carry out the theoretical training during the
first year, and at the second year - to establish the traineeship in court.
Admission
to the Academy is possible only for candidates whose average
assessment
according to the diploma not less
than
75 points.
It is necessary
to open in Academy doctoral studies for judges as professional development for judges is the important purpose of judicial reforming.
Examination in Academy should be carried out in two steps. At the first stage there is necessary to hold complex testing for knowledge of the
legislation in the National Testing Center, irrespective of Academy.
Following the results of testing if the candidate gained more than 75
points - he is passed to the next tour but if less – is not admitted.
Oral examination
is held on the second round. Examination needs to be
broadcast online for ensuring transparency
of the procedure. Passing a qualification examination on the judge needs also to be broadcast online. It is necessary to develop in Kazakhstan
the Regulations of Admission of a qualification
examination. There must be established an existence of
basic four-year legal education
as the requirement to judges. It should be
determined the order of medical examination
of judges. It is necessary to regulate legislatively
the priority bases for career promotion of the judge (excellent performance
in work, an academic degree, awards and
encouragement, etc.). Thus,
the modern judicial
policy is
directed
to
improvement of legal status of judges. Requirements
to judges steadily rise. At the same time, for ensuring balance and justice, it is necessary
to pay attention to compliance of qualifying standards to judges and responsibility conferred on them, material and social guarantees of judges.
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