Kazakhstan

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The Republic of Kazakhstan (“Kazakhstan”) became an independent state in December 1991. The Constitution was adopted on 30 August 1995 and amended 7 October 1998 and 18 May 2007.

Kazakhstan is a unitary state with a presidential form of government. Article 3 of the Constitution enshrines the principle of division of power into the legislative, executive and judicial branches.

The Constitution governs the competences of inter alia the President of Kazakhstan, the Parliament (the Senate and the Majilis), the Government, local administration as well as the Constitutional Council and ordinary courts. There is also a section devoted to the rights of individuals and citizens.

The Republic is divided into fourteen regions (oblasts), two cities with special status, namely Nur-Sultan (current capital) and Almaty (former capital) and a number of districts and counties. The state language is the Kazakh language, but the Russian language is officially used on equal grounds, cf. Article 7.

The President is elected by universal and equal suffrage by secret ballot for a five-year term. The current term of the president, President Nursultan Nazarbayev, will, however, be a seven-year term, cf. the constitutional provisions at the time of his re-election on 4 December 2005.

The President is the head of state, represents Kazakhstan and determines the main directions of domestic and foreign policy of the state. The President inter alia appoints the Prime Minister upon the consent of Majilis, determines the structure of the Government at the proposal of the Prime Minister, appoints a wide range of ministers and administrative heads of regions and cities, acts as Commander-in Chief of the Armed Forces, and has the power to call a state of emergency and impose martial law.

Amendments and additions to the Constitution may only be introduced by the decision of the President. Further, the President issues decrees and resolutions and calls referenda.

No one may be elected President more than two times in a row – this provision, however, does not apply to the current President in office, cf. Article 42 (4). The President may be prematurely released from office in case of high treason or in case of incapacity to perform his duties due to illness.

Executive power is held by the Government, which consists of the Prime Minister and the responsible ministers. It heads the system of executive bodies and exercises supervision over their activities. It presents the budget and reports on its performance to the Majilis and may introduce bills. It organizes the management of state property and develops and implements the foreign policy of the Republic.

The Government is responsible to the President for its entire activity. Equally, the Government is accountable to the Parliament, cf. Article 64 (2). Thus, the Majilis has the right to express a vote of no confidence in the Government by the majority of votes from the total number of deputies.

As mentioned above, Kazakhstan is divided into administrative territories. Local representative bodies (so called "maslikhats") and responsible executive bodies exercise public administration in these territories. Pursuant to Article 86 of the Constitution, maslikhats are elected by the population of the given administrative territory, on the basis of universal and equal suffrage and by secret ballot. Maslikhats are elected to hold office for a period of five years. Their jurisdiction includes inter alia approval of economic and social programs for development of the local territory, local budget and reports of their performance. The powers of the maslikhat may be prematurely terminated by the President or by the maslikhat itself by self-dissolution.

A local executive body is headed by an "akim" who is a representative of the President and the Government of the Republic. Akims are appointed by the President – in regions, major cities and the capital by the consent of the maslikhats – and are released at discretion of the President.

Legislative power is vested in the Parliament, which consists of the Senate and the Majilis.

The Senate is composed of deputies. Two deputies are elected from each region, major city and the capital. Furthermore, 15 deputies are appointed by the President in order to represent in the Senate the national, cultural and other significant interests of the society. Deputies are elected for 6 year terms, one half of them being re-elected every three years.

The Majilis consists of 107 deputies elected for 5 years. 98 deputies are elected on the basis of universal, equal, direct and secret ballot and 9 deputies are elected by the Assembly of Peoples of Kazakhstan, which is formed by the President of Kazakhstan.

The Parliament approves reports about the implementation of the budget and decides upon issues of war and peace. At separate sessions of the Chambers through consecutive consideration it may inter alia adopt the budget, ratify and denounce international treaties of Kazakhstan and propose the calling of national referenda. The Parliament may delegate legislative power to the President of Kazakhstan.

The President may – after consultation with the Chairmen of the Chambers of Parliament – dissolve the Parliament.

The legislative process is initiated by the President of Kazakhstan, deputies of the Parliament and the Government, cf. Article 61.

Once a draft law is approved by a majority of the total number of deputies in the Majilis, it is submitted to the Senate where it is considered for a period not exceeding 60 days. If the draft law is passed by a majority of votes of the total number of deputies of the Senate, it becomes law. Special procedures apply if the Senate rejects a draft or proposes amendments or additions to a draft law. Also, special, qualified majority rules apply for constitutional laws.

The President of Kazakhstan may decide on the priorities of draft laws, as well as declare the consideration of a draft law urgent in which case the Parliament must consider this draft within one month. If the Parliament does not meet this requirement, the President may issue a decree having the force of law which shall be in effect until the Parliament adopts a new law. The President may also object to draft laws in which case the Parliament must confirm the adoption of the draft law by a two-thirds majority, cf. Article 54.

In the case a draft law submitted by the Government is not adopted, the Prime Minister has – twice a year at the most – the right to raise an issue of non confidence in the Government. If the non confidence vote does not receive a majority of votes from the total number of the deputies of each chamber, the draft law shall be deemed adopted without voting.

The Parliament may - upon the proposal by the President of Kazakhstan - at joint sessions of both Chambers introduce amendments and make additions to the Constitution with a majority of three-fourths of the votes from the total number of deputies in each chamber.

Judicial power is exercised by the courts, cf. Article 75. The Constitution establishes the Constitutional Council, the Supreme Court, local and other courts.

The Constitutional Council (Article 71) inter alia decides on the constitutionality of laws, decrees by the Parliament and international treaties, interprets the standards of the Constitution, and decides on the correctness of conducting the elections of the President of Kazakhstan and the Parliament and of referenda. The Council also concludes on cases concerning the premature release of the President.

The Constitutional Council is composed of seven members appointed for a term of six years. The President of Kazakhstan elects the Chairperson and two members of the Constitutional Council. Two members are chosen by the Senate and two by the Majilis. The ex-presidents of Kazakhstan shall have the right to be life-long members of the Constitutional Council.

The Supreme Court (Article 81) is the highest judicial body for all civil and criminal matters. The Chairperson and judges of the Supreme Court are elected by the Senate at the proposal of the President of Kazakhstan based on a recommendation of the Highest Judicial Council of the Republic. The Chairpersons and judges of local and other courts are appointed by the President of Kazakhstan based on the recommendation of the Highest Judicial Council. The Highest Judicial Council is appointed by the President of Kazakhstan.

Posted: January 2008

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Opinions

2021-07-29

Since ratifying the UN Convention on the Rights of Persons with Disabilities, the authorities of Kazakhstan have made significant efforts to facilitate the participation of persons with disabilities in the electoral process, including in terms of access to information and polling stations. At the same time, the Civil Code still stipulates that persons with intellectual and psychosocial disabilities shall be recognized by courts as legally incapable, which means that in such cases, a guardian will be appointed to undertake all transactions on their behalf.  Once declared legally incapable, the Constitution of Kazakhstan and other relevant legislation prohibits the respective individuals from voting, standing for office, becoming members of election commissions or the civil service, or participating in public councils and local meetings or gatherings. This has significant repercussions for such individuals, including in relation to the exercise of their political rights. This approach is at odds with key international standards on the political rights of persons with disabilities, as set out, for example, in the above-mentioned UN Convention.

2021-03-16

ОБСЕ / БДИПЧ приветствует инициативу Министерства юстиции Казахстана запросить международную экспертизу плана действий и Концепции реализации Административного процедурно-процессуального кодекса Казахстана и развитие института административной юстиции и административных процедур. Данная Концепция в некоторых аспектах отсылает к соответствующим международным стандартам, таким как Европейский кодекс надлежащего административного поведения. Тем не менее, некоторые аспекты Концепции должны быть разъяснены для обеспечения соответствия международным обязательствам и стандартам, включая регулирование компетенции государственного управления Казахстана в отдельном правовом акте и роль прокуроров в административных делах.

2021-03-16

Summary

 OSCE/ODIHR welcomes the initiative of the Ministry of Justice of Kazakhstan to seek international expertise on an implementation paper, the Concept Note for the Implementation of the Administrative Process and Procedure Code of Kazakhstan, in relation to the international obligations on administrative procedure and process.  There are several relevant references to international standards, such as the European Code of Good Administrative Behavior. However, several aspects in the Concept Note should be clarified to ensure conformity with international obligations and standards, including the regulation of the competences of the public administration of Kazakhstan in a separate legal act, and the role of prosecutors in administrative cases.

 

 

2018-02-28

Summary: The Opinion notes that any measures aimed at improving the quality of, and increasing access to, legal services should not be detrimental to the independence of the legal profession. It reminds that, as a cornerstone of the right to a fair trial and an essential element of effective protection of all human rights, the principle of the independence of the legal profession is essential to the rights and interests of every member of society and not just lawyers. The Opinion addresses a number of the Draft Law’s provisions that pose a threat to the independence of lawyers in Kazakhstan, such as the executive branch’s power to coordinate the activities of legal service providers, the licensing system, the state’s involvement in disciplinary commissions for advocates, and the exceptionally broad powers of the executive branch to oversee and control the newly established profession of legal consultant. The Opinion further recommends a fundamental rethinking of the Draft Law’s system of regulation for legal consultants and a considerably more detailed approach to regulating state guaranteed legal aid (which, preferably, done through a separate law). Finally, noting the Government’s efforts to involve the legal community in the drafting process, the Opinion recommends that the reforms proposed in the Draft Law undergo further broad and inclusive consultations with all interested parties, including the public at large.

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Comments

2018-12-27

Summary: The Comments look at a Commentary prepared by the Supreme Court of Kazakhstan on the national Code of Judicial Ethics and analyze the compliance of both the Commentary and underlying Code with international human rights standards and OSCE commitments. While the Commentary’s attempts to interpret the provisions of the Code of Judicial Ethics are generally welcomed, the Comments also outline the differences between codes of ethics on the one hand, and disciplinary offences on the other, and stress that breaches of ethics codes should not lead to disciplinary sanctions.  Moreover, the Comments, among others, raise concerns with respect to certain provisions that are unclear or that contain extensive instructions on how to behave off-duty, including as regards the way in which judges exercise their religious faith. Another of a total of seven main recommendations suggests that the Commentary to the Code be validated by a wide representation of judges in Kazakhstan. These Comments were prepared at the request of the Head of the OSCE Programme Office in Astana.

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Notes

2021-12-16

OSCE/ODIHR welcomes the request of the High Judicial Council of Kazakhstan for international expertise in relation to the international obligations and standards on governance models of judicial councils. OSCE/ODIHR hopes that this Note will provide further guidance on international human rights obligations and OSCE commitments with respect to judicial councils.

Ensuring the independence and impartiality of a court or tribunal is as much a matter of principle as it is a matter of management. In this sense, the management of the judiciary acquires relevance as a guarantee to protect independence and impartiality. It must be reiterated that the key purpose of judicial self-governing bodies, particularly judicial councils or similar independent bodies, is to safeguard the independence of the judiciary and of individual judges. To serve this purpose, judicial councils must themselves enjoy sufficient independence from the other branches of power in their work and decision-making.

2020-12-04

Summary: In line with a request received from the Chairman of the High Judicial Council of Kazakhstan the Note focuses on selection competences and skills for independent administrative judges. A key element of rule of law is an independent and impartial judiciary. Consequently, the proper selection of judges is essential to ensure the independence of the judiciary, including judges in administrative justice. The Note contains references to international human rights instruments, national laws and good legal practices in the OSCE-Region pertaining to administrative justice. Thus, the Note provides an overview of relevant international standards for the selection of judges in administrative justice and also standards for an independent judiciary in general. Included in the Note are also several examples from judicial systems of OSCE participating States, without advocating for a particular model.

2018-12-27

Summary: In line with a request received from the Chairman of the High Council of Judges of Kazakhstan, the Note focuses on particular key aspects of disciplinary proceedings against judges, namely the relevant institutions conducting such proceedings, types of disciplinary action taken against judges, the impact of disciplinary proceedings on judges’ careers and appeals against decisions taken in such proceedings. When looking at these issues, the Note makes reference to key international principles such as the independence of the judiciary, other fair trial standards such as the right to be heard and the equality of arms, and the right to an effective remedy. Furthermore, the Note stresses that legal provisions on disciplinary proceedings against judges need to be formulated clearly and with adequate precision, and that the grounds on which they are based, and the ensuing sanctions need to be equally clear, and proportionate to the respective wrongdoing. In addition to outlining international standards, commentaries and case law, the Note also provides good practice examples from a large variety of different OSCE participating States, to showcase how relevant international human rights provisions have been transformed into domestic law.

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