The Right to a Fair Trial

The right to a fair trial is a combination of other individual rights, the security of which during the course of administration of justice makes it possible to determine whether the trial was fair or not. The right to a fair trial can be divided into three elements grouped by the rights consisted in it: 1) pretrial rights, 2) rights during the trial, 3) post-trial rights.

The right to a fair criminal trial arises from the moment of involvement of a given individual in a criminal procedure. Depending on the circumstances of the legal case, this moment may coincide with the moment of detention, arrest or arraignment. In this way, guarantees of a fair trial should be secured in the process of commencement of the criminal case, preliminary investigation and inquest, as well as during the course of trial itself, including judicial actions with regard to possible appeal.

As is well known, the right to a fair trial is a fundamental human right. It is one of the common principles, which are cornerstones of the international rights protection system. Since the year 1948, the right to a fair trial, acknowledged by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), became a legal obligation of all countries as a part of common international law.

The right to a fair trial was acknowledged and specially stipulated by other numerous international and regional treaties and norms adopted by the UN and regional intergovernmental agencies. These standards for the protection of rights were developed so as to be applicable to all legal systems of the world with due consideration to the great variety of legal procedures: they contain the minimum guarantees which should be granted by all systems.

For instance, OSCE documents stipulate necessary conditions, which member countries should create in order to secure the right to a fair trial. Among them are: independence of judges and impartial functioning of the governmental judicial service; judicial authorization of arrest or detention due to a charge of crime; fair and open investigation by a competent, independent, and impartial court established on the basis of the law; opportunity of the unimpeded receipt of qualified legal assistance including free assistance in case of insolvency of the prosecuted individual; presumption of innocence; supremacy of law and independence of the judicial system.

In conformity with the Constitution of the Republic of Kazakhstan, only the court may exercise justice. The judicial system is comprised of the Supreme Court and local (district and regional) courts.

The judicial system is the central governmental mechanism for the protection of rights, the main governmental institution for restoration and protection of human rights that have been violated, and is independent from the legislative and executive branches of governmental authority.

Kazakhstan consistently takes measures to develop the judicial system, to enhance the efficiency and impartiality of the legal procedure, to ensure the maximum openness and transparency of judicial procedures, and to implement its goals with regard to the human rights, freedoms, and legitimate interests of its citizens.

In particular, the Constitutional Law of RK of November 17, 2008 “On Amendments and Additions to the Constitutional Law of RK ‘On the Judicial System and Status of Judges of the Republic of Kazakhstan’” significantly reformed the judicial system. Appeal authority is established at district courts and their equivalents. The highest judicial agency of the government, the Supreme Court of RK, will have only supervision authority. Specialized courts will act as military, financial, economic, administrative, juvenile, etc.

A draft law, intended for the amendment of provisions of the Code of Criminal Procedure and the Civil Code, is under consideration by the Majilis of the Parliament of RK. These amendments are the result of reformation of the judicial system and a need to determine the jurisdiction of criminal and civil cases.

Social and economic conditions are changing, financial and industrial legislation is changing, and law-enforcement practice tests the efficiency of procedural legislation and reveals its defects, inefficiency, and gaps. The Republic is actively integrating into the world community, becoming a member of multilateral and bilateral international legal agreements.

Moreover, positive trends in the development of the judicial system of the country are still far from perfection.
An accusatory tendency continues to prevail in criminal investigation. Indirect proof of this is the extreme rarity of “not guilty” verdicts, and the cautious attitude of judicial employees to these instances.

There are cases of corruption and the violation of statutory requirements and the Code of Judicial Ethics in the judicial system.

The most important criterion used to assess fairness of a judicial hearing is the observance of the principle of equality of authority of the defense and the prosecution. The equality of authority during the course of the entire trial suggests the equal application of procedural actions toward the parties. It is impossible to list in detail all the violations of this principle. These violations may include failure to provide sufficient time to the accused individual and/or his lawyer for the preparation of his defense, or attempts to prevent the access of the accused individual and/or his lawyers to the appeal judicial hearing of the case in the presence of the prosecutor.

The legislation and law-enforcement practices of the Republic of Kazakhstan reveal that the equality of authority of the defense and the prosecution is not yet achieved.
Paragraph 1 of Article 14 of ICCPR also guarantees the right to require a public judicial hearing as the most important component of the concept of a fair trial. The principle of the publicity of a judicial trial suggests openness of both the judicial hearing (but in no way does it suggest the openness of any other judicial or investigative action) and the judgment on the given legal case. This right is enjoyed by both parties involved in the lawsuit and by the general public in a democratic society. The right to require a public judicial hearing means that the trial is carried out face-to-face and publicly without any preliminary applications submitted by the parties. The court must in a reasonable time inform the interested parties of the time and place of the judicial hearing and provide required facilities for the general public wishing to be present during the trial. However, it is necessary to mention that the press and the public may be excluded from a trial in harmony with the statutory requirements contained in Paragraph 1 of Article 14 of ICCPR; however, such actions should be based on a court decision delivered in compliance with the current procedural provisions.

The public may be excluded from a trial “for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires.” Besides, the public can be excluded from all or part of a trial “to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” When considering criminal cases related to sexual offences, “reasons of morals,” as a rule, are sound reasons for the exclusion of the public from the trial. The term “public order” in this context is understood as the maintenance of proper order in the courtroom. Reasons of national security are used when it comes to the confidentiality of military and governmental secrets. However, in both cases, restriction of the access of the public to a trial should be in harmony with the legal principles of democratic society, which are the foundation for efforts for the non-admission of arbitrariness when making judicial decisions. “The interests of the private life” (including the interests of family members and relatives) of parties may also be sound reason to restrict the access to a trial. An example of such a situation is the hearing of a custody case when openness of the trial can only damage one of the parties. And finally, the access of the public to a trial can be restricted for the sake of justice, which is done only in exceptional cases and is thoroughly justified by a corresponding court decision.

Although the list of circumstances requiring a closed hearing is quite extensive, as a rule, they do not cover the stage of reading of the judicial decision. According to Paragraph 1 of Article 14 of ICCPR, judgment rendered in a criminal case “shall be made public” except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. In this way, exceptions to the rule of a public judicial hearing can be determined in detail. The judicial decision is public if it was read in the courtroom or published in press, or made public by both methods at the same time. In either case, the determining factor of openness is the accessibility of the judicial decision to all interested parties.

Basically, the legislation of Kazakhstan regarding observation of the principle of publicity conforms to the above-mentioned international standards.

However, it would be advisable to legislatively establish the openness of trials to representatives of the press, public, etc. in order to prevent the free interpretation of these principles of fair trial by judges.

As a rule, the mechanism for securing the right to a fair trial for any criminal case is the hearing by a competent, independent and impartial judge, acting in harmony with established legislation (Paragraph 1 of Article 14 of ICCPR). The goal of this provision is to avoid arbitrariness or subjectivism during the course of consideration of criminal cases by political or administrative agencies of authority. The court must be competent and act within the limits of the law. Both of these requirements are inseparably linked. Although issues regarding the competency of the court are usually linked to issues of court jurisdiction, any court must function within the limits of established legislation. The main goal of this provision is to create a legal environment in which criminal cases would be considered by legislatively established courts regardless of the nature of the lawsuit or offence.

Independence implies the division of authority and the protection of judicial agencies from illegal interference in their affairs by agencies of executive authorities and to a lesser extent by the agencies of legislative governmental authorities.

Speaking of impartiality of the court, it should be noted that prejudice (or its absence) is considered the main criteria of impartiality of a judge. The impartiality of a judge immediately comes under doubt if he has already participated in the given trial in one capacity or another, if he belongs to any political party, or if he has a personal interest in the trial.

Theoretically, all these principles in a declarative sense are implemented in the legislation of the Republic of Kazakhstan.

According to Paragraph 2 of Article 14 of ICCPR, “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” Being the main component of the right to a fair trial, the presumption of innocence means that the burden of proof in the course of criminal trial is first of all the responsibility of the accuser the accused person is presumed innocent. In addition, the presumption of innocence should be applied not only to the accused during the course of the trial, but also to the suspected or accused during the course of pre-trial investigation. Responsible officials of law-enforcement agencies and representatives of authorities are obligated to do everything possible to comply with the presumption of innocence by “abstention from pronouncing any preliminary judgments on the trial under consideration.”

Despite the fact that the principle of presumption of innocence is a provision of the Constitution of RK and criminal procedure legislation, it is often neglected in practice. It suffices to state that the judge hearing a criminal case familiarizes himself with the criminal records submitted by the prosecution before the trial. Despite the fact that criminal procedure legislation obliges the agency that carries out the preliminary investigation to search for both accusatory and excusing evidences with regard to the suspected or accused person, this is disregarded. In practice, agencies of inquest and investigation collect evidence of guilt, believing that the evidence of innocence or any other evidence in favor of the accused person will be collected by the defense. Thus, in the majority of cases, judicial records represent thoroughly collected evidence supporting the opinion of the prosecution and a guilty verdict. These records are submitted to the judge who, during the course of familiarization with them, is inevitably inclined to the opinion of prosecution. As a result, usually the defense cannot advance their opinion and defend it, but can only call into doubt some of the evidences provided by the prosecution. This procedure requires cardinal changes in order to secure the principle of the presumption of innocence in practice.

Introduction a jury trial had a positive impact; however, it is impossible to rely on it for the complete resolution of this problem, due in part to the limitation of the categories of criminal cases that can be judged with the participation of a jury.

Paragraph 3 (b) of Article 14 of ICCPR states that in case if a person is charged with a criminal offence, he has the right “to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.” The right to require the adequate time and facilities for the preparation of his defense covers both the accused person and his counsel. The given legal provision must be complied with at all stages of the trial. The idea of “adequate time” depends on the character of the trial and circumstances of the case. In this case, factors are considered such as the complexity of the lawsuit, access of the accused person to testimonial evidence, the due date of certain judicial actions in compliance with the domestic legislation, etc. The term “facilities” in addition implies the access of the accused person or his counsel to appropriate information, files, and documents needed for preparation of his defense and the provision of the required technical means to the accused person for confidential communication with his counsel. The right of the accused person to communicate with counsel of his own choosing is the most important component of the right to adequate conditions for preparation of the defense.

As a whole, the provisions of Kazakhstan’s criminal procedure legislation contain these guarantees. However, it is necessary to exclude the dependence of the lawyer on the investigator with regard to the opportunity to meet with the accused person under arrest at his discretion.

The right to the assistance of a lawyer at the pre-trial stage in the course of the criminal investigation is directly connected with the right to protection during the course of the trial as stipulated by Paragraph 3 (d) of Article 14 of ICCPR. This provision states that each person has the right “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” In the latter case, the accused person who does not have sufficient finances is exempted from the liability to pay for legal assistance. This legislative provision assumes the following rights:

  • The right to be tried in one’s presence. This provision has many interpretations. A literal interpretation of this provision excludes the remote trial. This interpretation is shared by the majority of international non-governmental human rights organizations as well as by the International Criminal Court. However, in the opinion of the experts of the UN Human Rights Committee, a remote trial is acceptable only in the case when the state makes “sufficient efforts in order to inform the accused person about the forthcoming trial and in such way allows him to get prepared for his defense in advance;”
  • The right to defend oneself in person;
  • The right to defend oneself through legal assistance of his own choosing;
  • The right to be informed, if he does not have legal assistance, of this right;
  • The right to the receipt of free legal assistance.

According to the prevailing interpretation of the basic provisions of ICCPR, the right to the receipt of legal assistance covers all stages of the trial including the preliminary investigation and pre-trial custody. The assignment of a lawyer by the court contradicts the principle of a fair trial in case the accused person has the opportunity to use the help of a lawyer of his own choosing. The assigned lawyer should be able to effectively defend the interests of the accused person using to this effect all his experience and professional skills.

Basically, these rights of the accused are guaranteed by Kazakhstan’s legislation. Nevertheless, in practice it is necessary to secure the right to a lawyer of one’s own choosing. In addition, it is necessary to significantly improve the system of qualified legal assistance at the expense of the state budget.

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law” [Article 14(5) of ICCPR]. This right is aimed at the provision of at least a two-level trial where the second level is represented by a higher court. A review of any judicial case is substantial in itself, which in addition means that the higher court considers not only the question raised in the appeal but a wider range of questions. Appeal procedures should be timely. A direct consequence of the right to appeal is the fact that the court has to suspend the execution of any judicial decisions made by the primary court until the end of the review of the case by the court of appeal. This principle ceases to apply only if the convicted person voluntarily accepts the decision made by the primary court. The right to appeal is enjoyed by all persons convicted of crimes regardless of the weight of this crime and the decision made by the primary court. The guarantee of a fair trail should be observed without fail at all stages of the appeal procedure.

The right to the appeal is stipulated by the current legislation of the Republic of Kazakhstan.

However, it is necessary to improve legislation directed at the complete security of the rights of convicted individuals with regard to the court verdict taking effect. Quite often, the human right to be heard in a court and the right to the receipt of qualified legal assistance are violated at this stage.
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him” [Article 14(6) ICCPR]. However, it should be noted that compensation for miscarriage of justice is possible only in the case when the court made the final decision on the case. A judicial decision can be appealed regardless of the weight of the crime committed. To secure this right, the following three conditions have to be observed: 1) the miscarriage of justice should be officially recognized and confirmed by the revocation of the judicial decision or by a pardon; 2) the delayed discovery of relevant facts should not be attributable to the convicted person; 3) with regard to the convicted person, the final decision should have been made as a result of miscarriage of justice. The phrase “according to law” means that the government must compensate for the damage in harmony with the procedure established by current legislation.

The right to compensation for miscarriage of justice is stipulated by the current legislation of the Republic of Kazakhstan.
As stated above, legislation of the Republic of Kazakhstan regarding the security of the right to a fair trail contains a series of fundamental guarantees that correspond to international standards. Almost the entire list of human rights and freedoms during the course of a criminal trial are in one way or another established in the criminal procedural and criminal executive legislation of the Republic of Kazakhstan.
However, a comparative analysis of the provisions of current legislation and law-enforcement practices shows that there is a need to strengthen the current guarantees of personal freedom and safety as well as of other pre-trial, trial, and post-trial human rights.

In parallel, a necessary condition for securing human rights in the field of justice is the availability of truly independent judicial branches of authority and a qualified and highly professional association of judges who treasure their honor and social status.

In an effort to secure the rights of citizens to a fair trial, we recommend the Government of the Republic of Kazakhstan, the Ministry of Justice of the Republic of Kazakhstan, the Supreme Court of the Republic of Kazakhstan, and other authorized governmental agencies implement the following measures during the years 2010-2012:

  1. Apply measures for the openness and transparency of judicial procedures and activities of agencies of judicial authority.
    The achievement of these goals will be possible, first of all, by the implementation of objective methods of recording judicial procedures such as compulsory audio or video recording of the trial. At present, the only means of more or less reliably recording the proceedings is the court record.
    Legislation on administrative offences does not stipulate compulsory record keeping at all, and the right of the party to use audio and video recording may be realized only with the consent of the presiding judge. Therefore, to avoid possible disturbance of the trial, it is necessary to make appropriate amendments to the procedural laws.
    This suggested innovation will make the trial transparent, will result in practical implementation of the principle of publicity and openness of the trial, and will contribute to decisions made only on the basis of evidence investigated and recorded in the protocol and audio and video records, which will facilitate an objective trial and improve the quality of judicial decisions.
    It is necessary to consider the issue of wider use of electronic communication technology. For instance, at the initial stage it is possible to implement videoconference communication for remote trials, in particular, for the reconsideration of existing judicial decisions.
  2. The achievement of a high level of publicity and transparency will also be possible due to the regulation of relationships of the court with other governmental agencies, the press, and the public.
    Information with regard to the progress of the case should be made transparent and judicial records should be made accessible. Citizens and organizations should freely receive information on the activities of the courts, on selection of candidates for judges, etc. This would allow the full implementation of the principle of publicity and transparency of justice in the Republic of Kazakhstan and will promote successful reformation of the judicial system.
  3. The quality of justice depends first of all on the professionalism and competence of judges. Problems with the quality of the judicial force are evident. To a great extent, this is the result of poor and biased selection of candidates for judges. Therefore, there is need for a more transparent procedure for the appointment of judges. With a view toward resolving this problem, it is necessary to publish in advance, in the press or on the Internet, lists of individuals submitted by the Chairman of the Supreme Court for the appointment of judges and heads of courts and tribunals of all levels so as to make it public.
    During dialogue regarding candidacy for the appointment of judges, it is necessary to consult with civil society including professional associations related to the activity of the courts.
  4. Consider the issue of governmental support for trainee-candidates for judges, and of introduction of the position of judges’ assistants.
  5. Take measures to improve the specialization of courts and judges – develop juvenile courts in the regions of Kazakhstan and study the relevance of the establishment of tax, labor, and other courts.
  6. Issues regarding the disciplinary liability of judges require regulation. The Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan” stipulates the basis for disciplinary liability of judges, one of which is the violation of the law during consideration of a trial.
    However, Paragraph 3 of Article 39 of the above-mentioned Constitutional Law states that the cancellation or alteration of a judicial record in itself does not entail the liability of the judge, provided that there were no gross violations of law, as recorded in the judicial records of the higher tribunal.
    Thus, the legislator in fact made the liability of judges dependent on the will of the higher tribunal.
    In practice, judges of the higher tribunal, when discovering gross violations of law made by a judge during the course of a trial, do not mention this in their records, which prevents the possibility of holding the judge to disciplinary account.
    It would be proper to legislatively specify for which violations of law the judge may be brought to disciplinary responsibility. It is advisable to examine the possibility of appealing a decision of the Republican Disciplinary Board of Experts and of the Jury Court by interested individuals to the Supreme Judicial Council.
  7. It is necessary to improve the provisions related to time limits for consideration of civil cases, and the establishment of a mechanism for compensation for damage made during the course of the trial and execution of the decision. In particular, it is necessary to regulate all issues related to the consideration of cases in excess of the time limit established by law and the provision of the right to compensation for damage incurred in connection with the courts’ violation of the established term for consideration of cases.
    The provisions of the Code of Civil Procedure of the Republic of Kazakhstan (CCP RK) do not at all provide for a mechanism for the procedural regulation of compensation for damage incurred by employees of the court in harmony with Article 923 of the Civil Code of RK. The only article of CCP, which concerns the filing of a claim with the court, does not ensure the interested individual the opportunity to achieve his objective, and practice reveals that such claims are widespread and are not being addressed.
    In this regard, it would be advisable to consider the issue of expanding the list of participants of Constitutional proceedings and to include citizens in it by giving them the opportunity to appeal to the Constitutional Council for the protection of violated constitutional rights.
  8. During an extended period of time, giving consideration to the particularities of social and economic relationships, more attention was given to the development of the civil and criminal branches of law in practice, on paper, and in the creation of legislation. Meanwhile, administrative relationships are one of the most dynamic. Any social, economic, and political change in the government is reflected in the content of the provisions of this branch of law.
    Law-enforcement practice in the field of administrative relationships shows that the administrative courts established in 2004 significantly reduced social tension when resolving administrative cases, improved the protection of the interests of citizens against mistakes and abuse by authorized individuals, and provided certain guaranties of a fair consideration of administrative cases.
    Moreover, current legislation of the Republic of Kazakhstan does not stipulate the judicial consideration of administrative cases as an individual form of trial. The Code of Administrative Offenses of RK replaces the term “administrative trial” with the evasive term “procedure for cases of administrative offences” inasmuch as cases of administrative offences are also investigated by authorized governmental agencies.
    The poor development of the administrative process and the absence of the branch of administrative procedure law in the legal system have resulted in the fact that it currently is a combination of individual elements of judicial procedure and administrative procedure.
    A natural step in the development of the administrative judicial procedure should be the adoption of the Code of Administrative Procedure of the Republic of Kazakhstan. Currently, the provisions of administrative procedural legislation that regulate the procedure for consideration and settlement of public disputes with the participation of citizens and organizations are fragmentary, which complicates the everyday law-enforcement activity of the executive authorities and the activities for the protection of rights of governmental and judicial agencies. It is necessary to codify these provisions.
  9. It is necessary to legislatively improve the status and procedural opportunities of lawyers, with the objective of the achievement of procedural equality with the prosecution.
  10. It is necessary to exclude the practice of criminal investigation with regard to employees of the same department. The conditions for the objective investigation of such criminal matters should be the exclusion of the investigative jurisdiction of law-enforcement agencies with regard to their own employees.
  11. In an effort to strengthen the independence of judges, it is necessary to legislatively establish the election of chairmen of panels of judges by the judges of corresponding courts.
  12. Introduce the position of Justice of Peace (Biev) by legislatively establishing the election of these judges by the population of the country.
  13. Revise the current procedure of preliminary consideration of administrative appeals, which significantly restricts the rights of the participants of the lawsuit and makes their position unequal to the prosecution, whose notice of appeal does not require preliminary investigation.
    Administrative appeals of lawyers, convicted individuals, victims, and other participants in the trial submitted to the reviewing court should be handled in the same manner as appeals by the prosecution – immediately, by the supervisory board, for the adoption of procedural decisions.
  14. Abolish the preliminary consideration of administrative appeals by three judges, since this is an infringement on the rights of citizens to the objective consideration of their appeals. Presently, the reviewing tribunal consists of two levels: the preliminary consideration of the case by three judges whose decisions may not be appealed; and the final consideration by 5 judges who consider the case only if the suit was commenced at the stage of preliminary investigation. This mechanism causes justifiable discontent of citizens and legal entities. One court cannot have two tribunals (appeal and supervisory) since the chairman of the appeal tribunal is directly subordinate to the chairman of the supervisory tribunal; and this causes distrust of citizens and legal entities of the objectivity of the trial. Legal and physical persons who do not agree with the decisions of the primary tribunal will be able to appeal only once to the district court. With the view of their full trust, their appeal petitions should considered by a panel of judges. In the case of their disagreement with the decision, the appeal may be lodged with the Supreme Court, in which there should also be no preliminary consideration. With due consideration for the opinion of the European Court with regard to non-recognition of the supervisory court as a tribunal and the Rome Convention regarding legal definitiveness, the Supreme Court of RK should become a supervisory court which would conduct the final consideration of an appeal. In this way, the entire judicial system would consist only of three tribunals, which would facilitate the access of citizens and legal entities to justice and conform to international standards of openness (transparency) of the judicial system.
  15. Legislatively regulate the issue of the right of lawyers to obtain upon demand documents constituting governmental, commercial and other legally protected secrets. The law should stipulate the conditions under which the documents demanded may not be provide to him.
  16. It is necessary to legislatively establish issues related to the procedure for conducting interrogations and recording of information obtained as a result of an interrogation and the procedure for the evaluation and acceptability of such evidence. Establish a legal basis for the expansion of the right of lawyers to collect evidence, documents and other information, i.e. to legislatively settle the issue concerning the presentation of evidence by the lawyer during the course of a trial from the standpoint of its admissibility.
  17. Abolish the death penalty as a form of criminal sanction and ratify the second Optional Protocol to the International Covenant on Civil and Political Rights.