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Information regarding the regulatory resolution of the Constitutional Court
(№ 10 of 21 April 2023)
The Constitutional Court considered a citizen's appeal to verify the constitutionality of the provisions of paragraph 4 of Article 44, paragraph 3 of Article 44-1 of the Constitutional Law ‘On the Judicial System and the Status of Judges of the Republic of Kazakhstan’ (hereinafter - the Constitutional Law) and paragraph 1 of Article 24 of the Law ‘On the Supreme Judicial Council of the Republic of Kazakhstan’ (hereinafter - the Law).
By the Decree of the President, the subject of the appeal was dismissed from his position as a judge on the basis of the decision of the Commission on the Quality of Justice under the Supreme Court of the Republic of Kazakhstan (hereinafter - the Commission), which recognised him as unfit for his position due to his professional unsuitability. He had previously been disciplined by a decision of the Trial Jury of the Superior Council of the Judiciary (hereinafter- the Trial Jury) in the form of a reprimand.
The noted decisions of the Trial Jury and the Commission under the contested rules may be appealed by the judge to the Supreme Judicial Council.
In the opinion of the subject of the appeal, these restrictive rules of appealing the decisions of the Commission or the Trial Jury only to the Supreme Judicial Council exclude the possibility of realising the fundamental right of everyone to judicial protection of persons provided for by the Constitution.
The Constitutional Court held that in the interests of ensuring the legal stability of the judge's position, a comprehensive, complete and objective examination of the circumstances surrounding the bringing of a judge to disciplinary responsibility and the application of other measures against him or her, the State has established multi-stage proceedings for the dismissal of judges, consisting of several independent stages. Decisions at each stage are taken collegially, with the participation of the judge himself or herself, who is entitled to familiarise himself or herself with all materials, give explanations, invite other persons and submit other documents (paragraph 1 of Article 23 of the Law). The Constitutional Law and the Act also establish a special procedure for appealing the decisions of the Commission or the Trial Jury - to the Supreme Judicial Council, which has the right to annul such decisions (paragraph 3 of Article 24 of the Act).
In view of the special procedure for the dismissal of judges, the procedure established by the Constitutional Law and the Act for appealing the decisions of the Commission or the Judicial Jury to the Supreme Judicial Council does not infringe their right to judicial protection as enshrined in the Constitution.
The Constitutional Court has found the norms of the Constitutional Act and the Law to be in conformity with the Constitution and recommended that the Supreme Court and the Supreme Judicial Council, in order to better ensure the rights of judges, consider further improvement of the legislation on the judiciary and the status of judges, taking into account the need to provide for the possibility of the participation of defence counsel and the use of other instruments for the protection of judges' interests.