Information regarding the regulatory resolution of the Constitutional Court
(№ 36 of 6 December 2023)
The Constitutional Court considered a citizen's appeal to verify the constitutionality of subparagraph 1) of paragraph 1 of Article 39 of the Constitutional Law ‘On the Judicial System and the Status of Judges of the Republic of Kazakhstan’ (hereinafter - the Constitutional Law).
According to this article, a judge may be brought to disciplinary responsibility for a gross violation of legality in the consideration of court cases and materials.
According to the subject of the appeal, the content of the subparagraph of this article has a negative impact on the independence of the judge, who should be guided by the law without fear of punishment and without being controlled or influenced by persons with administrative powers.
The Constitutional Court considers that the constitutional guarantees of the autonomy and independence of the judiciary predetermine its constitutional purpose and are not a personal privilege of the citizen holding the position of judge. Judges shall be exempted from liability for judicial error, as well as cancellation or amendment of a judicial act. The exception is the fact of gross violation of the law, which is stated in the judicial act of a higher court instance, in the presence of significant violations of norms of substantive and (or) procedural law. In bringing a judge to disciplinary responsibility, the state has established a multi-stage proceeding, at each stage of which the decision is taken collegially with the participation of the judge himself/herself. However, the very assessment of the quality of a judge's performance in the final judgements of higher courts in specific cases, rather than in another judicial act, is beyond the scope of the subject matter of the proceedings. The procedural law does not provide the judge with the possibility of using appropriate instruments of legal defence at this stage, including the right to judicial review. In this regard, further improvement of the legislation in terms of bringing a judge to disciplinary responsibility is required. The norms of the Constitutional Law should exclude arbitrary prosecution of a judge and should not infringe on the constitutional and legal status of a judge, his/her independence and inviolability.
The Constitutional Court found subparagraph 1) of paragraph 1) of Article 39 of the Constitutional Law to be in conformity with the Constitution and recommended the Government to submit to the Mazhilis of the Parliament a draft law aimed at improving the legislation on the judiciary.