Evgeniy Jovtis: The same musicians are still playing their tune

A new legislation was recently proposed to the parliament of Kazakhstan on “adding changes and additions into some legislative acts of RK on the issues of modernization of procedural bases of law-enforcement activity”. At the first glance proposed change are quite progressive. Experts have doubts though.

But first a little about the nature of the legislation. Introducing the package of legislative innovations, deputy general persecutor Marat Alkhmetjanov noted 5 key directions: strengthening of the level of protection of human rights, increase of competition between sides, increase of judicial control, easing of investigation process, as well as elimination of duplicating and clear distribution of responsibilities between investigative bodies, prosecutor office and court.

Thus the legislation oversees: – decrease in the period of apprehension of suspects from 72 hours to 48, and down to 24 for under-aged children;

-transfer of all sanctions to the court in the criminal process (only three sanctions will go through the prosecutor to the judge -apprehension, house and extradition arrests);

-notificiation about unofficial actions. “those who have been wiretapped, followed will be informed by investigating bodies, so that they could file a suit in case it was done illegally. Our citizens never had that right before. Main goal – is the increase of protection of constitutional rights of people. And both institution and courts will know think more thoroughly, whether to implement unofficial actions” – Akhmetjanov clarified.)

Also introduced is decrease of pressure on businesses. Particularly, now it is proposed to not apprehend people based on economic crimes. However, this won’t apply to raiders, money counterfeiting, contraband, financial pyramids and organized crime. Competitiveness is increasing; rights of defenders are increasing, who through court will be able to force investigators to conduct necessary examinations, searches, exhumations, etc. A new institution is introduced – summary procedure for misdemeanors or small crimes , under condition there is enough evidence on the case, person admits their fault and agrees to pay the fee. Term of investigation and examination of cases within summary procedure will considerably shorten.

We asked the director of Kazakhstani international bureau on human rights law observation Evgeniy Jovtis to comment on these changes.

For the past 25 years criminal process is constantly being reformed in Kazakhstan. The authorities keep trying to modernize and advance the system of criminal justice, especially in the area of procedural guarantees. There were 3 criminal procedural codes, two of which were passed in the independent Kazakhstan, and each of them started to fall apart in a couple of months – new additions kept getting added.

The last code was also often critiqued, as well as the entire system of criminal justice. The norms of criminal-procedural legislation themselves were critiqued, as well as institutions involved in the system, police prosecutor’s office, courts and attorneys as par of the institution, that is supposed to help citizens realize their right for qualified legal assistance. All kinds of people critiqued this system. For example, in 2004 special reporter for UN on the independence of judges and attorneys Leandro Despouy came to Kazakhstan on a mission. Based on it, he made a report in which there was a ton of recommendations of all sorts – from lowering of dominating role fo prosecutor’s office in the criminal process to creation of judicial system and development of attorney sector that is truly independent from executive branch.

Then “our answer to Chamberlain  from the supreme court of Kazakhstan appeared, which very negatively reacted to special reporter’s critique. But if you read his report today it becomes apparent that majority of conceptual and systemic recommendations of Despuoy weren’t implemented.

Then, UN committee on human rights spoke twice on the necessity of changing the system of criminal justice, within the framework of examining Kazakhstan’s reports on implementing international pact on civil and political rights; also spoke up UN assembly on human rights and OSCE. Thus, necessity of reforms of criminal justice of Kazakhstan was suggested from different sides. And some reforms were passed – criminal procedural code was changed, government investigative committee opened and closed, jury trial appeared, which was later cut down dramatically in terms of cases it can do.

There were a lot of reforms, but from the point of view of independent experts and the society, a clear inequality persists in Kazakhstan between the sides of prosecution and defense, between the state and its citizens. And the court is called inquisition, since it plays an active role in establishing circumstances of the case and in essence assists the prosecution side in removing procedural mistakes, even though it is supposed to be neutral and support equality and contentious nature of sides in the process. The number of absolvent verdict stays around 1 percent. Dissatisfaction with unfairness of criminal justice in society continues to grow.

In this backdrop, the attempt to modernize procedural activity contains a number of positive moments. First of all, it could be said about lowering of apprehension term without court sanctions from 72 to 48 hours. But, not in all cases – the time of 72 hours remains for serious crimes as well as for cases where it takes a long time simply to deliver the suspect of crime to the court. But overall, it is the right direction. There are other positive examples. Expanding of the scope of responsibilities of defendants and ability of defense to more effectively gather evidence and other factual sources in support of their defendant, using government structures among other things. A slew of investigative activities would be possible to do only with sanctions from court, including unofficial investigative activities, related with wiretapping and outside surveillance. The citizen can even be informed that such activities were being held, however, only six months after, but still.

Also in the project of changes to the legislation on procedural bases of law enforcement activities in Kazakhstan is the summary procedure on small cases and criminal misdemeanors, in which with the  agreement of an individual being summoned, the term of conduct of court decreases dramatically, thus a simplified legal procedure is possible, without requirement to prove something. Police will conduct it.

There are other interesting moments referencing the practice of other countries – from Germany, Austria to Great Britain, that could inspire optimism, but…

What alerts me and why I have doubts in the success of another modernization of criminal-procedural sphere is that…We reform something in terms of procedures, this is good, but the problem of unfairness of the process – it is complex and is related not so only to what and how is happening. Of course, it is good, when there is a slew of modern aspects in the law, allowing to provide procedural rights of a person and his defense in the criminal process. But besides that, the problem of unfairness I also carries a political and institutional character. Legal system is under direct and serious, but not spelled out political pressure. It often acts in accordance with what is prescribed from the top, and is governed by non-legal means of control and direction of criminal justice in terms of its results. Out law enforcement system, and I think this won’t be denied by anyone, is very corrupt and personified. Thus, a person is looking for a prosecutor or a judge or an inspector, in order to solve their problems not in the framework of court process but on a personal level. Thus, here almost all of court, prosecutor or police corps is made up of people existing in an already formed system of coordiantes of relationships.

Thus, when supporting overall modern efforts, you cant help but ask yourself the questions of their effectiveness, because the same “musicians” are palying.

I’ll give you another example. I was one of the major supporters of introducing jury trials in Kazakhstan, in their classical model, so that as many serious cases as possible would be addressed there, which in my opinion would solve several problems. For example, the issue of quality of evidence on the prosecution side. Because it is one thing when prosecution brings evidence to the judge, who already read the materials of the case, and it is another thing when there is a need to prove the guilt of the defendant to people who don’t know anything about the case, and somehow convince them that he/she is guilty; that should teach our prosecutors to speak before a court, by bringing up facts and evidence. Unfortunately today, our prosecutors speak in the court exclusively in the technical language and mostly from a paper.

Court of jury in a way that I described it was supposed to pull practice of law to a higher level, because defendants also need to learn how to speak, appeal to people on an emotional level and on the level of arguments. And I thought that this will strongly appeal to the sense of justice of society, that will judge for itself, because you are judged by the way you judge.

Unfortunately, today in Kazakhstan the percent of acquittals passed by the court of jury is slightly higher, than that of a traditional one, but overall the situation hasn’t changed. Why? It is simple – the innovations turned out to be within the same system, cultural stereotypes, habits, and a judge who, together with the jury remains in the consulting room during the passing of decision, clearly dominates as an influential person with authority.

Another example: Judges were given a right to sanction arrests. We thought that as a result number of unjustified arrests would go down; but the situation hasn’t changed. As a prosecutor would do earlier, now a judge gives a sanction stating that a person is accused of a serious crime or may continue doing illegal activities, while simultaneously locking up journalist Mamay, Mataevs, union leaders and many other activists and journalists, even before the passing of a verdict, even though it is clear that they don’t pose any threat to society and won’t pressure the witneses.

In other words, many times in the history of modern Kazakhstan, it seemed to experts that some reforms of the criminal process and law enforcement system in general must lead to positive results. But unfortunately, they didn’t lead to anything.

As such, according to a new project, investigating judges will get more powers. They don’t essentially examine the cases themselves, and they don’t work with prosecutor’s office or police, and it seems they are not tied by corporate interests. However, due to my experience, I have no trust in the reform or any certain hope that it will be effective.Yes, from a formal point of view it is good that new norms appeared in the legislation, that closer align with international law, international practice, follow examples, that are used in Europe. But I am very pessimistic about the prospects of another modernization of procedural bases being successful. Because it will be done within the frame of the same political-legal system, and implemented by the same people activity of whom today, doesn’t give a right to talk of provision of lawfulness, justice, impartiality and objectivity in execution justice.


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