About Concept of legal policy of RoK for the period from 2010 to 2020
Order of President of RoK as of August 24th 2009 # 858 "Kazakhstanskaya pravda" as of 27.08.2009 # 205 (25949); "Egemen Kazakhstan" 2009, 28 august, N 281-283 (25680)
Subject to publishing at the Collection of acts of the President and Government of RoK and republican press
According to the item 1 of article 40 of Constitution of RoK, for further determining main directives of the legal policy of the government, I ENACT:
1. To approve the attached Concept of legal policy of the RoK for the period from 2010 to 2020 (hereinafter - concept).
2. To setup that this Concept is the basis for developing relevant programs in the sphere of legal policy of the government, perspective and annual plans of law drafting works of the Government of RoK, drafts of the regulatory acts of the Republic.
3. Central and local state bodies of the RoK shall follow regulations of the Concept during development of execution of their strategic plans.
4. Control on execution of this Order to be imposed to the Administration of the President of RoK.
5. This order becomes effective since the date of signing it.
of RoK N.Nazarbayev
Order of President of RoK
as of Aug.24th 2009 # 858
Concept of legal policy of the RoK for the period from 2010 to 2020
Concept of the legal policy of the RoK accepted in 2002 determined main directives of development of the legal system of the country for the period till 2020. During the last years accepted several important legislative acts which allow to develop state and social institutes providing stable social economic development of Kazakhstan. Main result of execution of the Concept became considerable update of the main branches of the national legislation (constitutional, administrative, civil, banking, tax, financial, customs, ecological, criminal, criminal remedial, criminal executive legislation).
developed and accepted new codified acts: in 2003 - forestry, Land, Customs, Water Codes; in 2007 - Labor, Ecological codes, in 2008 - Budget, Tax codes.
Government taken actions which allowed to promote policy making process to the new qualitative level among which: perspective planning of the law drafting activity; implementing scientific (legal, anti corruption, criminological and other) expertise of the drafts of regulatory acts; full financial provision of the accepted laws.
At the same time fundamental changes which taking place in the world economy and policy, process of globalization, also internal dynamics of development of country do not allow to stop on achieved goals. For providing compliance of the national right with the new challenges of time, it is necessary to further improve policy making and law enforcement activities of the government.
First 10 year period of the 21st century was marked in Kazakhstan with a new stage of constitutional construction. On May 21st 2007 accepted a law "About amendments in the Constitution of RoK" which considered as important events for the country. At the same time kept parameters of Kazakhstan model of state structure which passed through time check.
Within the frame of this model during constitutional reforms was performed modernization of the system of power relations which enhanced the role and impact of the Parliament Chamber which now having more responsibility for the state of the affairs in the state.
Thankfully to the course for wide development of the institutes of civil society, harmonization of the relations of the state and society, cancelled constitutional prohibitions and limits to the active cooperation of the state and public institutes, modernized the system of local self control, which nowadays completely complying with internal conditions and demands of our country.
At the constitutional level was given an impulse to the new stage of the juridical and legal reform oriented for consolidation of independence of the courts when administering justice. Sphere of applying death penalty reduced and limited with terroristic crimes connected with death of people and extremely serious crimes committed in military time which in Kazakhstan conditions means cancellation of the death penalty. Implemented judicial authorization of the arrest, excluded constitutional prohibition of investigation by prosecution and court.
The conducted reform is directed for further democratization of the institutes of the country and society. All these system solutions which obtained constitutional acceptance, shall find further implementation in the current legislation of RoK. For improving efficiency of the law making activities necessary to continue works on systematization of the effective legislation, further consolidation in the legislation sections; releasing it from outdated and doubling norms, filling in the gaps in the legal regulation, elimination of internal contradictions in the effective law; minimization of reference norms in the laws and expansion of practices of accepting laws of direct impact within the issues by which in accordance with Constitution can be accepted legislative acts.
Special attention shall be paid to the forecast analytical provision of law making activity which will be based on regular monitoring of the tendencies of development of law and law systems, analysis of practices of using regulatory acts.
It would allow to create modern by content and methods regulation of system, which visually reflects all the stages of law making and law using activities as per each act - its development, acceptance, application, making amendments, considered to have lost force or development of the new act.
By means of such procedures and mechanisms optimizing and becoming systematic law making activity of the government bodies. And wide use of sociological methods under legal monitoring will allow to consider public opinion during performance of judicial policy. Will be implemented international standards of evaluation of regulatory acts which will allow to completely consider interests of citizens, society and government, provide efficiency, economic feasibility and rationality of the judicial norms. Important normative consolidation of all types of scientific expertise of the drafts of acts by identifying their criterions, goals and stages of their performance. Such approach to the expertise will allow during law making process to provide full consideration of financial economic, social political consequences of regulatory acts. Existing requirement in implementing scientific expertise for the drafts of international agreements of RoK. R950468
This way, development of scientific expertise will allow to resolve the plan of preparation of the drafts of regulatory acts which comply with current state and perspectives of development of society and government. At the moment at the level of law identified 17 branches of legislation, judicial regulation of which shall be performed by codes. At the same time, codification - is not the only tool for systematization of legislation. Shall use also other tools for instance consolidation which is joining of the norms of laws which regulate certain relations in one legislative act.
Due to his, it is perspective to implement and legal consolidation of such term as "consolidate" or "complex" law, the subject of regulation of which will be legal relations having complex nature.
As per codification, then the highest form of systematization of law shall be used judiciously and limitedly and mostly to the settled branches of laws in those spheres of public relations where without codification it is impossible to achieve efficient judicial regulation.
For accepting any code shall precede law making and law using practice, its close monitoring, analysis and evaluation set on systematic base. The branch of law shall grow till the level of codification. In any society existing complex system of socially considerable interests. Performance of such interests is performed through mechanisms of official and non official lobbying in the law making process. Due to this, such event like lobbying shall have legal frames and regulate relations connected with promotion of the development, discussion and acceptance by Government of the drafts of laws. It is necessary to widely and regularly attract for the law making activities representatives of society, nongovernmental organizations which represent interests of private business.
Shall improve and increase the level of legal drafting methods which determines quality of regulatory acts and in general level of culture of working with documents in the government. Perspectives of improving the mechanisms of legal regulation mostly connected with wide implementation of informational technologies into law making and law using process. Due to this, for the formation of basic components of "electronic government" infrastructure, formation and efficient keeping of the bank of data of regulatory acts it is optimal functioning of Reference bank of regulatory acts in electronic format. At the same time necessary to implement into legislation of regulation stipulating electronic type of regulatory acts which will become a serious step into computerization of national law.
Required further actions on improving effective practices of law making.
Content and quality of laws, adequate to the transformations in the country will be provided by efficient functioning of institutes of state authorities, provision of constructive and dynamic relation of legislative and executive branches of power.
Therefore required unified legal policy based on modern tendencies of development of society, best practices and scientifically justified, fundamental views of nearest and far perspectives of Kazakhstan government and society.
2. Major directions of development of national law
Required further execution of legal ideas and principles of Constitution of RoK which shall be implemented in the legislative, organizational and other state measures.
Attempts of state and social institutes shall be concentrated on implementing potential of the Main law of country which is contained within all constitutional establishment. In the process of improving legislation and during law enforcement actions, it is required to follow the principles of domination of Constitution and compliance of norms of acts of lower level with the acts of higher level.
There are required system actions providing legality in the country and stability of the law system, as well as development of national law within the frame of effective Constitution. Complex approach to the legal policy will allow to modernize whole regulatory base in the context of general strategy of development of country, including as per building qualitative new model of state control on the principles of efficiency, transparency and accountability which provides protection of rights and freedom of citizens, interests of society and country.
2.1. Foundation of national legal system is constitutional law. Its development is expected on the principles and norms of effective Constitution of Kazakhstan which is considerably updated in the result of constitutional reform of 2007. Z070254
Ideas and principles in the Main law of country are identifying major directions and mechanisms of development of national legal system including constitutional rights. Important goals is full execution of principles and norms of Constitution, first of all in the activity of the state powers and its officials, provision of direct action of Constitution, and execution of its potential through current legislation and law use.
Observance and execution of main principles of activities of republic stated in the Constitution of our state (public consent and political stability, economic development for the welfare of people, Kazakhstan patriotism, resoling important issues of state life by democratic methods) will allow to provide stable social economic and political legal development of the country.
Basics of constitutional structure of RoK, sovereignty and unitarity of the state will be consolidated through improvement of constitutional legislation and practices of its use. Perspectives of development of constitutional law connected with improvement of effective constitutional laws identifying the structure of government, unity of state power, mechanisms of functioning of its branches and their relation between each other under strategic management, control and arbitrage of national wide elected President of RoK. One of the important mechanisms of providing the constitutional legality, exact interpretation of principles and norms of Constitution, formation of orientations of development of national right and law applying practices is improvement of efficiency of Constitutional Board and excessive practical execution of its normative acts in the legal politics of the state.
In the process of further approval in the country of principles of legal state it is important on the one side to achieve maximum guarantees of performing constitutional rights and freedom of people and citizens, and on the other side satisfactory execution of constitutional duties by all state bodies, officials, citizens and organizations.
For providing rights and freedom of citizens it is important to create conditions which guarantee equity of rights and freedom despite of their nature, social, proprietary position, gender, race, nationality, language, relation to religion, beliefs, place of living and other circumstances required by our Constitution.
In this context will be increasing the role of legal mechanisms in keeping and consolidation of international agreement, provision of unity of multinational people of Kazakhstan.
Kazakhstan is a secular state where dominating inter faith peace, respected and observed rights of religious citizens and also citizens having atheistic views. Government is not interfering into sphere of religious activities but shall provide mutual relation with confessions and protect the rights of citizens for freedom of confession, and therefore shall be built efficient state policy in this sphere.
Required further improvement, observance and application of legislation about free confession as per regulation of missionary activity, distribution of religious products, registration of religious communities. In the modern conditions most role also will play a factor of gender equity in the state and public life, provision of equal rights and equal possibilities for the males and females.
Sequential and stable development of Kazakhstan as dynamic, modern state with high standards of quality of life is possible only on the basis of activation of human potentials, growth of flexibility of citizens, consolidation of institutes of citizen society.
Due to this required legal tools giving additional impulse to the development of institutes of citizens society and possibilities of execution of civil initiatives. shall improve status of nongovernmental organizations, mechanisms of legal regulation shall consider specifics of activities of nongovernmental organizations, also provision of state support of public communities.
Also necessary improvement of regulatory regulation of information issues. In general, this activity and mechanisms of its legal regulation shall be oriented for guaranteeing freedom of speech, free obtaining and distribution of information by any legal way, with consideration of observance of constitutional rights for immunity of private life, personal and family secrets, correspondence privacy, privacy of phone conversations and other messages, also observance of legislation about state secrets. Development of civil initiatives is connected with local self control issues. This institute which is at the joint section of the government and civil society, also requiring its consolidation and development. It is necessary to conduct not only delimitation of functions of state control and local self control, but also to widely attract local self control bodies for participation in execution of state functions having local value.
And for building effective system of state control and self control, this work shall be performed simultaneously with further delimitation of spheres of activities, functions and responsibilities between various levels of state power.
2.2 Development of the state control system in Kazakhstan is connected with legal provision of administrative reform oriented for creating efficient and compact state mechanism, implementing new management technologies, improvement of administrative procedures. That is already sphere of regulating such a branch of law as administrative, important goal of which is provision of efficient functioning of state mechanism on all levels of power. Due to this, in the sphere of state control, administrative rights shall be oriented for: providing rational and clear allocation of competence between state bodies; prevention of excessive state regulation including controlling functions;
regulation of terms and order of execution of state functions by executive branches of power;
provision and organization of mutual relation of state control bodies with citizens and organizations. At the same time in the modern conditions when increasing the role of state regulation of economy, necessary to speak about expansion of capabilities of administrative right and distribution of its regulatory potential among new public relations.
During further development of administrative law shall back off from traditional approaches in relations between government, citizens and nongovernmental organizations based on unilateral power principles. it is impossible to refuse completely from the "power and sub ordinance" however shall expand the sphere of application of partnership assisting, functional and exceptionally preserving principles.
Due to this necessary to continue works on simplifying registration, permit licensing procedures, creation of barriers for illegal interference of state bodies into activity of commercial and non commercial organizations.
Shall improve the mechanisms of appealing of citizens to the state bodies and officials as form of their participation in the state management and way of protection of their rights and freedom including expansion of the range of services provided by government through "electronic government".
At the same time shall regulate relations connected with appeals of citizens to the nongovernmental organizations as per protection of their rights and legal interests including observance of periods of revision, setting up liabilities of organizations and their official for reviewing appeals of users of their services. In modern conditions administrative law is covering not only sphere of state relation. In the orbit of administrative law there are also relations of state institutions with citizens and organizations when providing public state services. And legal nature of state services differs from usual state functions as it was noted in the relevant solution of Constitutional board. Occurs new institute of administrative law which regulates relations in the sphere of providing state services for the citizens and organizations. For providing functioning of this institute necessary to have relevant legal base.
Complete implementation of the standards on rendering state services requires administrative legal regulation. Necessary to expand the list of state services, implement efficient external control on their execution by using new technologies. Development of the administrative law shall be reviewed not only through traditional vertical relations of the power and subordination but also through the prism of social interests and very often multidirectional interests.
By means of the administrative law performing rights of citizens and organizations guaranteed by government, as provision and protection of those rights is a public interest of the government.
The administrative law objects (authorities and officials of the government, local self control bodies) are carriers of public interest whose goal is protection and execution of rights and legal interests of the citizens and organizations. In other words, protection and execution of rights and legal interests of the citizens and organizations are being modern form of content of human rights protection function of administrative law.
In modern conditions associated with complication of public life, often occurring mixed relations, therefore required to resolve issues which can be impacted by administrative law, its correlation with other branches of law and first of all administrative law with civil law in case of occurrence of mixed legal relations.
Control of state authorities being a function of state control on the one side and method of providing legality on the other side, remaining an important issue of the administrative law. A relevant act of Constitutional Board resolved the issue about correlation of controlling authorities. At the same time it was confirmed that in our country no constitutional limitations on assigning to the state authorities of controlling rights. In other words controlling authorities can be imposed also to other state bodies except prosecution.
It means that along with prosecution control there is also authorized administrative control performed by authorized officials of the executive power in regards to the unsubordinated objects - citizens and organizations for providing observance of legality in the spheres of activity regulated by administrative legislation by using measures of administrative enforcement.
It means that the goal of administrative control under strict observance of rights and legal interests of citizens and organizations, is providing observance of administrative legal regime.
Perspective directions of improving state control connected with: optimization of the system of controlling bodies; regulation and reduction of scope of controlling authorities not only in regards to entrepreneurs but also other legal objects;
increase of level of legal regulation of administrative controlling activity.
The subject of regulation of administrative right is relation in the sphere of governmental service. Top priority directives of its development are:
clear limitation of political and administrative state services;
formation of new and modernization of effective institutes of controlling human resources at the state service;
implementing new methods of selection for the state service based on the professional and personal characteristics; implementing new principles of labor payment and motivation; implementing modern system of assessing actions of the state officials, oriented for the final result.
the main part of administrative law is administrative tort law, and perspective of its development connected with update of the legislation about administrative violations at the base of which shall contain acceptance of the constitutional norms about rights and freedom of citizen which identify the content and application of laws.
Legislation about administrative violations shall be by maximum directed for recovering violated rights, prevention of legal conflicts in the society by administrative legal measures. And during formation of administrative legal sanctions shall be observed a principle of their adequacy to the level of social risk and nature of violations.
It is required to setup clear concept of delimitation of authorities between the court and non judicial authorities as per reviewing cases about administrative violations, in other words about correlation of judicial and non judicial order of revision of administrative cases. At the same time remaining an important thesis about possible expansion of authorities of the court on imposing administrative fines, also development of principles of competitiveness in the administrative proceeding. For the administrative tort law existing issues of clear identification of the relations protected by administrative tort legislation and more clear delimitation between administrative legal and criminal legal sanctions.
Other important directions are development of administrative procedural right the peak of which is accepting of Administrative procedural code. And it is required to clearly identify the subject of regulation of administrative procedural legislation. In this context remaining important issues of legislative regulation of the order of resolving certain cases about administrative violations. Also in the context of development of administrative rights shall review the issue about administrative justice which resolves the arguments about rights occurring from public legal relations between the government and citizen (organization).
Shall review the issue of procedural individualization and legitimating of the order of settlement of conflicts of public - legal character.
This way administrative proceeding shall become a full form of performing justice along with criminal and civil proceedings.
2.3 Further improvement requires tax legislation.
Developed, clear tax legislation - is one of the important terms allowing to setup favorable investment climate, attract national and foreign investments. Due to this tax legislation shall be directly connected with industrial innovative strategy of the country: it shall assist in development of non primary sectors and implement in the country new technologies.
World tendency is reduction of tax loads. When improving tax legislation it is necessary to use advanced foreign experience which is based on following widely accepted principles of building the taxation system:
taxes shall be minimum as possible;
also expenses for their collection shall be minimum;
taxes shall not interfere to competition;
taxes shall comply with structural policy of the state in the economic sphere;
taxes shall be oriented for correct allocation of incomes;
tax system shall exclude double taxation;
It is necessary to develop the issue about possibility of implementing the institute of consolidated taxation when one or several taxes are paid by parent company on behalf of the group of connected enterprises and such group of enterprises is considered as unified tax payer as per this tax.
It is required to continue works on simplifying the tax reporting, reformation of certain type of taxes, provision of tax stimulation of some categories of tax payers.
Customs legislation shall be developed in the direction of simplifying and harmonization of customs procedures for elimination of discrepancies in the customs rules and procedures which may interfere to the development o international trade and exchange, also stimulate international cooperation.
It is required to regularly improve and increase efficiency of customs rules and procedures for reducing extra administrative barriers; provide predictability, sequence and openness when applying customs rules and procedures; concerned parties shall be provided with all information; required use of modern methods of customs administration such as control based on risk control and audit methods; maximum use of IT; implementing international customs standards. One of the main goals of the national law is provision of modernization of the state financial control system as the control activity of the government in the sphere of finances is one of the useful tools providing efficiency of the process of control by state actives and financial resources. Also required to consolidate legal and proceeding basics of functioning of the state finance control bodies. Efficient state policy in the sphere of natural monopolies and regulated markets mostly depends on the state regulatory base which shall be directed for stimulation of financial activities of the regulated objects of natural monopolies, creation of conditions for increasing capital investments into assets of such objects, motivate them for increasing productivity and reduction of expenses; increasing quality of provided services.
Also necessary to improve the legal base which identifies basics of state regulation and control of actions referred to the state monopoly, also basics of state protection and support of competition.
2.4 Civil right of Kazakhstan passed through several stages of its development. Present Civil code being the largest codification act of the RoK absorbed the ideas of modern civil law. The Code contributed main principles of regulation of goods / money relations; equity of form of ownership and its immunity, freedom of agreement, equity of the business entities. Based on the Civil code was setup the main package of legislation which created conditions for development of the market economy.
At the modern state of development of civil law to the first lines coming out problems of correlation of public legal and private legal methods of regulation of public relations, and limits of state interference into private business activity. It is necessary to optimize correlation between civil law and other branches of law considering public legal interests by identifying that relations concerning national security are referred to the sphere of public legal relations and cannot be regulated by contractual legal methods.
Shall continue works on expanding use of principle of dispositivity which means opportunity for the participating persons to manage their material and process rights as per their consideration. And use of dispositivity method shall not cover civil legal relations related to the public interests. Also shall review the issue about normative identification of "waiver of right" and "waiver of performing rights" and consequences of each waiver. It is important for resolving the issues of civil legal standing. One of the important problems is legal meaning of agreed actions of the participants of commercial relations related to the public interests or interests of third parties which indirectly take part in such actions. It is important to clarify the general understanding of affiliated deals by making accent on that they are not prohibited but in legal cases subject to preliminary inspection. Clarification of the fact of affiliation shall become a base for accepting the deal as invalid as per request of the person whose legal interests are being violated by such deal.
Shall review the issue of the status of joint stock companies considering their legal nature and complexity of resolved issues including in the context of so called "public corporations". Shall resolve the issue about possibility of using organizational legal form of joint stock companies as of non commercial company.
Shall also review the issue of fixation in the Civil code of whole spectrum of securities having role in the civil circulation.
Practices of using civil legal norms showing lack of determining the types of losses caused by violation of civil rights. Due to this is important to setup order of identification of real loss.
It is required to identify application of mutual restitution in case of invalid deal, if the purchaser of the material is being faithful and in cases stipulated by law this product cannot be retrieved.
It is required to clarify the idea of deals, their content and consequences of non execution of deals. Methods of civil law shall provide a balance of interests of owner of property, who lost the rights for the property in the result of illegal actions of the third parties, and honest customer.
The practices shows the need in legislative expansion of proprietary rights including such notion as servitude.
Also shall review the issue about expansion of basics of occurrence of proprietary rights. It is necessary to clarify not only content of the proprietary rights but also the mode of use of their certain types.
Required further working out of the issue of participation of the government in the civil legal relations and waiver from immunity in the sphere of private legal relations while preserving the immunity of the government in the sphere of performing public functions which complies with international requirements.
For stimulation of business activity it is necessary to review the possibility of implementing agents into the content of civil law objects and regulation of issues of agent agreement as negotiable institute widely used in the proprietary circulation.
Shall take actions on improving general and special norms of Civil code about liabilities. Shall pay serious attention to setting the regulatory acts in compliance with international standards in this sphere, but considering national interests. Also shall improve legal regulation of the bankruptcy procedures especially bankruptcy of individual businessmen.
2.5 Financial legislation shall provide favorable condition for the development and functioning of national finance market, protection of rights of consumers of finance services and assist in creating equal terms for the activity of financial organizations, supporting fair competition at the finance market.
While considering tendencies of development of world and national economy, priorities of finance legislation shall be connected with improvement of controlling process based on monitoring of financial stability, assessment of potential risks, formation of flexible regulatory mode, operational response to the problematic issues in the activities of the banks, also maximum approximation of the system of control over financial organizations to the world standards. Legal regulation of the market of securities will be directed for further development and increase of competitiveness of the national market of securities, creation of favorable conditions for its members, expansion of the base of emitents and line of financial tools, development of investor base and provision of protection of interests of investors. For the development of scheme of collective investment, under simultaneous protection of rights and legal interests of holders of shares of investment funds, shall improve legislation which regulates activity of the investment funds.
Another important aspect of development of the market of securities and provision of protection of rights and legal interests of investors is creation of stable functioning market of securities.
Legislation shall provide favorable conditions for the functioning and development of national financial market, protection of rights of consumers of finance services and assist in fair competition at the finance market.
In the country settled and functioning modern system of mandatory and volunteer insurance, settled market of insurance services. And global context of legal response at the national level with consideration of insurance system settled in the world practices and national law applying practices. Within the frame of resolving legal issues of insurance system under the terms of active development of electronic commerce, existing the need in development of internet insurance and its regulatory legal regulation.
An important tools of market economy is evaluation activity, legal regulation of which also required regular attention and improvement. Due to this required complex of organizational legal measures directed for: setting up state standards of evaluation; bringing the evaluation activity in accordance with international requirements; improvement of state system of regulation and self regulation of evaluation activity.
2.6 In the Constitution of Kazakhstan settled main social rights and principles of building social state. Due to this one of the main goals of the law is further formation of active mechanisms of providing social rights and execution of modern social policy. Social legal policy of the government having complex, multi branch character is designated for resolving whole spectrum of social problems. Mostly referred issues of legal regulation of education and healthcare, provision of occupation and social protection of population, environment protection and prevention of emergency situations.
In the conditions of market economy, existence of labor market and problems of occupation of population an important issue is issue of labor relations. Due to this it is required to regularly improve labor legislation based on the systematic analysis of practices of its application and considering international experience in this sphere. At the same time required to develop issues on further differentiation of the labor and social legislation depending on the character of labor activity and labor conditions of the employees, also issues of expansion of spheres of application and tools of social partnership. Legislation in the social sphere shall be mobile considering dynamics of priorities of social policy of the government, expansion of the list of social conditions provided by government, creating new forms of participation of citizens in identifying sources of funds directed for social provision. Level of social protection and social provision will be systematically corrected depending on the growth of financial possibilities of the government which considers continuous law making process in this sphere. One of the perspective directions of development of social legislation is: using existing and creating new safe financial tools used during placement of pension assets; improvement of social protection system of certain categories of citizens including persons for whom social payments are the only sources of living. For our country in several regions of which observed complicated ecological situation very important development and further improvement of environmental legislation, including in the context of its harmonization with international duties and standards.
For improving efficiency of environmental activity, shall delimit the mechanisms of legal regulation of use of natural resources and their protection.
Environmental legislation shall stimulate rational use of nature and observance of ecological norms, development of ecologically pure production and ecologically safe behavior of citizens. Most regulatory acts which regulate relations in the sphere of emergency situations, civil defense, fire and industrial safety requiring improvement and consolidation which will allow to improve the quality and level of legal regulation in the spheres of public relations.
2.7 Civil proceeding law shall provide accessibility of justice, maximum execution of rights of participants of civil proceeding, timely protection and recovering of violated rights and freedom of persons, interests of the public and state. In this case the measures on improving civil proceeding legislation could be oriented for:
1) identification of ways and methods of providing accessibility of justice allowing to the citizens more completely fulfill their rights for judicial protection;
2) regulatory - legal consolidation of principles of justice, objectiveness, expansion of validity of principles of competitiveness, also recovering of principles of continuation of judicial proceedings as per civil cases;
3) identification of subject to jurisdiction of the cases based on the transition from subjective principle of identification of subjection to jurisdiction as per subjective - objective principle, considering the category of subjects involved into the orbit of proceeding, and depending on character of legal relations;
4) further expansion of sphere of simplified order of civil proceeding, including by way of expansion of sphere of application of summary procedure, also simplifying proceeding as per cases subject to jurisdiction at the special courts;
5) optimization of the stage of preparation of the case to the court for providing quick revision and solution of the civil cases;
6) expansion of possibilities of execution by court of appealing authorities on accepting new decision as per the case (revising the case) for speeding up with final decision of the case and provision of execution of rights for appealing judicial acts;
7) exclusion of excessive formality of proceeding as per civil cases, including regarding types, structure and content of the judicial decision;
8) fixing various ways and methods of achievement of compromise between parties of private legal conflicts (mediation and others) as in judicial and non judicial order, including mandatory discussion of possibilities of using actions of settlement procedures during preparation of the case to judicial proceeding, also development of non judicial form of protection of civil rights.
2.8 Important chain of legal policy of the government is criminal policy improvement of which is performed by complex correction of criminal , criminal proceeding and criminal executive law, also application of law.
Assessing the present state of the criminal law, may state that in general steady development of it. The present Criminal code - is an efficient tool for fighting with crime and criminal legal protection of rights and freedom of people, interests of government and society.
Further development of the criminal right shall be performed with consideration of double vector of the criminal policy. Humanization shall first of all related to the people committed crime of lower and medium level, also socially vulnerable group of people - pregnant and lonely women having infant children, and aged people. At the same time it is required to conduct strict criminal policy in regards to people guilty in heavy crimes, hiding from justice, also in case of reoccurrence of crimes.
An important direction of development of criminal law is identification of possibilities of stage by stage reduction of the sphere of applying criminal repression by expansion of conditions of releasing from criminal punishment, first of all in regards to people which do not represent public risk (infants, persons that committed negligent crime, to other persons - in case of existence of mitigating circumstances).
It is important also to bring the criminal law in compliance with international agreements, rarified in Kazakhstan. It is not only about de criminalization but also about inverse process - about criminalization of certain types of violations, also keeping criminal responsibility of legal entities for some categories of crimes, including for the ecological, economic and corruptive crimes. Criminal policy of the government shall be oriented for:
further decriminalization of violations which do not have public risk, with transition of them into category of administrative violations and consolidation of administrative responsibility for their commitment, also reassessment of level of complexity of the certain crimes by mitigation of punishment;
strengthening of criminal responsibility for crime, attempting to non adults, their rights and legal interests, for crimes committed within criminal group or criminal society, in case of reoccurrence of crimes; expansion of sphere of application of criminal punishments not connected with arrest, including exclusion from certain sanctions of punishments as arrest or reduction of maximum periods of arrest; identification of fine as one of most efficient type of criminal punishment and possible expansion of its use;
setting adequacy of punishment in the sanctions of Criminal code articles referred to one category of severity and compliance with their principle of fair punishment;
implementing alternative measures of state enforcement;
continuing the course for step by step narrowing of the sphere of applying the death penalty;
improving the institute of releasing from criminal responsibility, service of sentence, release on parole.
Further improvement of the legal law is connected with improvement of the quality of law - law limiting the constitutional rights and freedom shall comply with requirements of legal accuracy and predictability of consequences, its norms shall be settled with enough level of clarity and based on clear criterions allowing to differ legal behavior from illegal, excluding the possibility of uncertain interoperation of the law regulations.
2.9 efficient criminal policy of the government is impossible without optimal model of criminal proceeding. Therefore, speaking of perspectives of development of the criminal proceeding law, shall underline that the present Criminal code of RoK mostly brought the system of criminal justice in compliance with characteristics modern democratic, legal government. Main goal of the law establisher is formation of criminal proceeding law based on acceptance of the constitutional norms about rights and freedom of person and citizen by directly acting laws and providing justice.
Therefore the priority of development of criminal proceeding law is further sequential execution of main principles of criminal proceeding oriented for the protection of rights and freedom of people.
It requires development of optimal legal mechanisms considering efficient application of the criminal legislation and legislation about operational searching activities for the quick and full opening of the crime, revealing and bringing to criminal responsibility of people that committed it, fair judicial proceeding and proper use of criminal law.
The order of production as per criminal cases shall provide protection from unjustified blaming and conviction, from illegal limitation of rights and freedom of people and citizens, in case of illegal conviction or blaming of un guilty person - immediate or complete rehabilitation, also assisting in consolidation of legality and order, prevention of crimes, formation of respectful treatment of laws. Impotent goal is observance of legality, rights and freedom of citizens when performing operational searching activities. In this case necessary to strengthen the system of guarantees of rights and freedom of citizens, provide immunity of private life, responsibility for illegal use of funds and methods of operational searching activities.
Shall take actions on further development of principles of competitiveness of prosecution party and protecting party at the criminal process.
This way, most directions of improving the criminal proceeding law are in: simplifying and improving efficiency of criminal process, including simplification of order of pre court process; legislative regulation until investigation with identification of its limits;
creating conditions for expanding application of measures of prevention which alternative to the arrest including the security deposits; step by step implementation of new institutes of recovering justice based on reconciling of parties and reimbursement of caused harm;
possibility of expansion of categories of criminal cases by which the criminal prosecution and conviction at the court can be performed as in private and in private public order; step by step expansion of categories of criminal cases reviewed by court with participation of jury members; further improvement of mechanisms of providing qualified legal assistance as per criminal cases not only to the convicts and suspects but also to the suffered people and witnesses.
2.10 in the criminal executive sphere necessary to take following actions.
For minimization of involving citizens into the sphere of criminal justice, economy of criminal repression measures it is required to create conditions for wide application of the criminal legal actions not connected with isolation from society. And in the legislation and in the judicial practice shall develop the approaches when the choice of type and measures of criminal impact based on recording data about possible efficiency in regards to the certain person.
At the same time for most active application of measures by court, it is required to achieve improving the efficiency of their execution which requires institutional development of specialized body responsible for execution of such measures.
Considering that arresting is still the main type of criminal punishment, it is required to take actions which increasing the educational component of arrest, where not dominating the component of retribution. Required further development of content, forms and methods of educatory impact to the convicts based on the principles of individualization of punishment.
Important to resolve the issue of occupation of people sentenced to arrest by involving them to the public useful labor and/or training, social programs of re socialization, including anti drug, anti alcohol content or other forms of social activities.
Along with preserving and providing high requirements to the discipline and order at the institutions of criminal executive system, shall strengthen the measures on psychological pedagogical provision of the process of execution, criminal punishments, on improving status and providing social legal protection of personnel of criminal executive system.
Along with it, for the areas of arrest important provision of security of person, observance of rights and legal interests of people that under arrest. Among most perspective directions in this sphere required approach to the ward order when the arrested person having in day time possibility of moving and communication within the building, and in night time will be isolated in the separate room.
For keeping the balance between interests of the society and government on punishing convicts and observance of their rights and legal interests during imprisonment assisting the settled mechanisms of public control development of which shall have special attention. Also important to improve quality of medical servicing of persons which at the places of imprisonment, especially the system of prevention of illness of people which under arrest.
Required system measures directed for providing state policy in the sphere of re socialization of citizens released from the imprisonment areas as full members of the society.
The system of execution of criminal punishments shall be brought closer to the common international standards.
3. Main directions of development of law enforcement and judicial system and law protecting institutes
3.1. During the period of independence of Kazakhstan there was settled law enforcement system complying with the needs of democratic and legal government.
At the same time the law enforcement activity of government requiring further development and improvement. Due to this, the main priorities in this activity shall be: fighting against crime, provision of legality and public safety, protection of rights and freedom of citizens, provision of inevitability of the response of government to any violations, quick and full opening of crimes, revealing and bringing to criminal responsibility of persons that committed it, prevention of violations, cooperation with citizens in fighting against crime. For resolving these goals shall not only improve law enforcement agencies, improve the forms and methods of their work, but also to provide stability of human resources policy, improve requirements to qualifications and discipline of of personnel at the law enforcement departments.
The main sector of the law enforcement system of the country is prosecution department.
It is required to improve efficiency of controlling activities of prosecution as main function. Further necessary to improve proceeding basics of prosecution actions. Within the frame of this work necessary to improve the role and responsibility of prosecutor in the pre judicial work, including by investigation of criminal cases by prosecution which containing serious public risks and complexity as main part of criminal investigation performed by prosecution.
Shall further improve efficiency of coordinating functions of the prosecution in regards to the law enforcement activity including by means of relevant legal regulation of this function.
Main goals of the internal affairs department are protection of social order and provision of public security, fighting with crime against persons, properties and other common criminal crimes. From efficiency of internal affairs department depending safety and peacefulness of citizens, state of crime and level of crime situation in the country, due to which the process of improvement of internal affairs department shall be concentrated on providing quick and adequate response to the crimes and prevention of violations.
Finance police departments performing imposed goals on fighting against economic and corruptive crime, had proven their complete compliance.
At the same time under the conditions of market economy, finance police shall regularly improve forms and methods of works in order to have possibility of efficient opposition to economic and corruptive crime, which is regularly mimicrating under present conditions. Finance police shall stand against economic crimes, reveal and eliminate the causes and conditions which cause corruption. One of the main goals of the finance police is also provision of safety of business, excluding unjustified interference into its activity. Shall optimize the structure and functions of law enforcement bodies for setting up more efficient organizational mechanisms and efficient allocation of relevant functions, due to which important issues are connected with releasing the law enforcement bodies from unrelevant functions. And during conducting administrative reform at the law enforcement departments, shall consider specifics of their activity so that the taking actions didn't cause reduction of their law enforcement potential, weakening of possibilities in standing against crime.
For the staff of the law enforcement bodies required unified legal standards and norms of service, including special qualified requirements similar to qualification requirements to the categories of administrative positions, required contest way of hiring to the law enforcement departments.
Also shall draw a line for certain demilitarization of law enforcement bodies by preserving military and special ranks of military men and personnel of law enforcement bodies performing main goals and functions set for those bodies. For providing efficient activity of law enforcement bodies necessary to identify clear criterions of assessment of their activities, and not only by quantitative indices but also by quality parameters.
Shall regularly work on improving efficiency and arrangement of actions of the investigating branch including taking actions directed for improving proceeding status of the investigator. Also shall improve the order of assigning authorities and attestation of police inspectors where should be considered opinion of population. Also shall continue works on timely implementing and proper use of legal norms, oriented for providing national security including for prevention and elimination of spreading of terrorism, ethnic and religious extremism, illegal migration, drug addiction and drug business, human traffic, computer crime, illegal production and sales of weapons, international corruptive crimes, also those referred to the sphere of money washing.
The main goal of the law - identification of basics of national system of protection of information, main threats in this sphere, mechanisms of execution of sole state policy in the sphere of informational security.
3.2 Judicial system of Kazakhstan completely complies with needs of providing efficient judicial protection of rights and freedom of citizens protected by law of interests of organizations and government.
Development of judicial legal system will be performed based on the succession and phasing and considered as per performing directions.
Main vector of its development is specialization of the courts and judges including development of juvenile courts, creating special courts on hearing criminal cases, possible formation of tax and other special courts. And juvenile courts shall become a central sector of the juvenile justice which is being setup in the country.
In future also on the base of acting administrative courts necessary to create administrative justice system which is hearing public legal arguments with transition of case about administrative violation to the common jurisdiction courts. IN the result of improving the judicial system shall be excluded doubling of functions with various judicial sectors.
Perspectives of development of the judicial system connected with possibility of stage by stage expansion of the limits of judicial control at the pre court system.
Will be developed a system of arbitration courts. Public is interested in full, objective enlightenment of the activities of the judicial powers. For this purpose necessary to improve the level of openness and transparency of judicial system, by providing wider access of population to the information about actions of the courts.
Implementation of the modern means of fixing judicial information will assist in execution of principles of competitiveness at the proceeding. Planned informatization of the judicial system will allow to provide operational informational legal support of the process of justice, reduction of periods of hearing the cases, improving efficiency of execution of court decision. Required actions on further improvement of order of selecting court personnel, important the issues of hardening the qualification requirements to the candidates to the courts, as professionalism and high moral qualities are the main formations of the qualitative judicial sector.
Required strict control by judicial society on observance of requirements of judicial ethics, adequate and immediate reaction to all violations. For simplifying the guarantees of independence of judges the important issue is complete execution of requirements of Constitution that financing of the courts and provision of judges with accommodation "shall provide possibility of full and independent performance of justice", which considers stage by stage improvement of the level of social protection of judges and material technical provision of courts considering financial possibilities of the government. At the same time for interference into administration of justice, demonstration of non respect to the court, the guilty persons shall bear legal responsibility.
The final stage of proceeding is execution of legal acts, therefore shall take actions providing their fulfillment. Due to this implementing the institute of private judicial executors along with state judicial execution - is important measures of improving the efficiency of proceeding. Within the mixed model of execution of judicial solutions, only state judicial executors shall have the rights of forced execution of documents about fines for the income of the government, also as per penalties from the government.
Shall achieve execution of judicial acts including by strengthening responsibilities for deviation from execution of the court decision, further expansion of use of limiting measures in regards to the debtors, strengthening proceeding judicial control over executive sector.
3.3 Construction in Kazakhstan of the judicial government requires further improvement of the specialized institutes connected with protection of rights and freedom of citizens. Important mechanisms in the system of protection of rights and freedom of people became institute of persons authorized by laws. Creation of this state hum protection institute is a serious step of deepening the democracy in Kazakhstan. The experience shows that necessary to review the issue of improving efficiency of actions of this institute. Leading role in this system of protective institutes playing defense office which is the main part of the system on rendering legal assistance to the citizens.
Execution of constitutional rights by citizens for obtaining qualified legal assistance is the term and guarantee of access to the justice. Mechanisms of execution of this right need to be improved.
Implementing the trial jury, transition to the courts of sanctioning the arrests reflected on the role of the defense. However, proceeding rights of the lawyer as an active members of crime process requiring efficient legal mechanisms of execution.
Improvement is required also for the system of providing legal assistance. First of all necessary to improve the system of rendering legal assistance to the persons with low level of incomes.
Sequentially shall resolve the problem of iniquity of provision of layer services in the towns and villages.
Required correction of the system of administration of payment of labor of layers providing free legal assistance. This system shall become consolidated and transparent which will allow to efficiently use the budget funds.
Also considering the experience of the countries where implemented institute of mandatory insurance of liabilities of lawyers, review the possibility of implementing such insurance in our country.
One of the main goals is improving the system of notary activity. Required regulatory identification of the role of notary sphere as part of legal infrastructure providing additional stability and legal safety of relations in the civil circulation, qualitative protection of rights and legal interests of citizens and organizations. National model of notary system shall provide access to the notary assistance within whole territory of the country.
4. Judicial provision of external political and economic activities
Judicial policy of the country under the conditions of globalization having growing international legal aspect. Due to this one of the main directives of this policy is legal provision of external political and economic activity.
Such activity oriented for the protection of long term national interests in the foreign political sphere, provision of profitable cooperation at the international stage in double sides and multi sided formats, requiring adequate international legal regulation.
Shall continue works on bringing the national legislation till the level of accepted international liabilities and international standards. And in this work shall follow internal needs and priorities in development of the country.
For the fulfillment of goals of foreign policy of the government required balanced approach to the conclusion of international agreements and participation in the international organizations, which shall have prior serious work on forecasting social economic, political judicial and other consequences.
International legal institutes and organizations shall be actively used for providing national interests of Kazakhstan at the international stage, including for building safe, stable Central Asia, improvement of attractiveness of the region.
5. Judicial education, judicial promotion
Main part of the judicial policy is judicial regulation of scientific and educational activity which is important term of providing industrial innovative development of the country, improvement of its intellectual potential.
And the main part of the scientific educational activity is judicial education, and judicial promotion, or issues of judicial culture. Due to this shall continue works on improving legal awareness of citizens. Shall expand scope and improve quality of judicial promotion among population through mass media, including internet resources, activating scientific researches on vital problems of legislation and law application, especially in those branches of law which mostly demanded in the daily life of citizens. One of the issues closely connected with organizational legal measures are issues of judicial education. Society and government need lawyers of new formation, which patriotically concentrated and oriented for protection of rights and freedom of people, interests of society and government. Such approach shall be on the basis of the system of judicial education.
It is wise to follow the way of consolidation of possibilities of the government on resolving the problems of preparing multi profile judicial staff in the modern conditions. Such approach will allow to avoid loss of state resources and improve the quality of preparation of judicial staff.
Execution of the norms of Concept of the legal policy will allow to fulfill main ideas and principles of the Constitution of RoK in the context of the new stage of building in Kazakhstan of the constitutional state.
Efficiency of execution of the Concept and stability of national law, efficiency of the legal regulation deepening on constructive relation of all the branches of state, quality of solutions made by authorities and responsibility of officials.
Complex development of Kazakhstan legislation and its efficient application in accordance with setup by Concept main directives of legal policy of the state will assist in further consolidation of the mode of legality, observance of constitutional rights and freedom of people, provision of stable social economic development of the country, and consolidation of Kazakhstan government.