Statement by Ph.D. Usen SULEIMEN, Director of “National Endowment for Prosperity” Fund, the Republic of Kazakhstan.

Plenary Session 5

Rule of Law (Independence of the Judiciary; Right to a Fair Trial; Democratic Lawmaking)

Kazakhstan has undertaken major reforms to strengthen the independence of its judiciary.

All personnel matters have been transferred to the High Judicial Council. The Chair of the Council is appointed with the consent of the Senate, and its members are selected by the judicial community itself.

Issues related to the disciplinary responsibility of judges are also independent from court leadership. All violations of legality are immediately referred to the High Judicial Council.

Judicial administration is handled by a separate body – the Judicial Administration.

A new system of court financing has been introduced. The judiciary is guaranteed a fixed share of the state budget (6.5%), which cannot be reduced.

Thus, the courts are now freed from non-judicial functions and focus solely on the administration of justice. When administering justice, a judge is independent and subject only to the Constitution and the law. No one has the right to interfere with a judge’s work or exert any influence.

An analytical digital assistant with elements of artificial intelligence has been introduced to assist judges. Full audio and video recording of all court proceedings has long been implemented.

The judicial amnesty system (admjusticia) operates effectively. This year, separate cassation courts were established.

An extraterritorial jurisdiction system for civil cases has been introduced, minimizing corruption risks.

In practice, courts increasingly apply preventive measures not involving detention (house arrest, bail, electronic bracelets).

Virtually all court proceedings are open to the public. Closed sessions are held only when state secrets are involved, in cases of sexual offenses, or when required to ensure the safety of participants – in line with international practice. Regardless of whether a trial is open or closed, defendants are guaranteed the right to defense, including the provision of a professional lawyer. Participants in the proceedings have the right to familiarize themselves with case materials and use all available legal instruments to protect their rights and freedoms.

During court proceedings, the presumption of innocence is strictly observed.

Since the coronavirus pandemic, most hearings have been conducted online, without hindering citizens’ ability to protect their violated rights and legitimate interests. At the same time, the Supreme Court is carrying out extensive work to ensure the quality organization of online court proceedings. All OSCE/ODIHR recommendations are being taken into account in this process.

ODIHR Report

On the presumption of innocence: Under the Constitution, a person is considered innocent until proven guilty by a court verdict that has entered into legal force. This principle is detailed in legislation (no one is obliged to prove their innocence; all doubts are interpreted in favor of the accused; leading questions are prohibited).

According to ODIHR observers, placing defendants during trials in plastic cabins or metal cages creates an impression of guilt.

Currently, all defendants whose preventive measures do not involve deprivation of liberty are seated freely in courtrooms without any restrictions.

Defendants held in custody are placed during hearings in shatterproof glass or plastic cabins, with handcuffs removed – which prevents escape while ensuring the safety of both the defendants and others present in the courtroom.

During the trial, defendants placed behind glass can freely communicate with their lawyers.

This practice has been in place in Kazakhstan for quite some time, taking into account the best international standards and practices.

As for trials held in pre-trial detention centers (SIZO), where defendants are placed behind bars – this is an exceptional measure applied only when it is impossible to ensure safe consideration of a case in a courthouse due to the large number of participants. Such cases are extremely rare in practice. As a general rule, cases are heard only in court buildings.

On the application of detention: Authorizing detention is the exclusive competence of the investigating judge. Such a decision can be appealed. The gravity of the offense cannot be the sole basis for detention (although the Criminal Procedure Code contains a list of articles for which detention is mandatory).

Judicial practice shows that courts increasingly choose house arrest. For example, in 2024, courts independently replaced detention with house arrest for 2,523 detainees – five times more than investigative bodies requested.

A similar situation exists regarding bail. This year, investigative bodies petitioned for bail in respect of only 32 persons, whereas courts, refusing detention, imposed bail in 271 cases – eight times more.

On the initiative of the Supreme Court, the use of electronic bracelets has become widespread.

In 2024, such bracelets were applied to 647 persons, compared to only 68 the previous year – a tenfold increase.

On indictments: As part of legislative improvements, the exclusive function of prosecutors to draft indictments is being gradually expanded (from 2022 to 2026), replacing investigative bodies in this task. The latter now submit completed criminal cases to the prosecutor with a report on the completion of the pre-trial investigation. This model is adopted from OECD countries.

At this stage, prosecutors independently prepare indictments in cases of particularly serious crimes and corruption offenses.

On restrictions on public access to court proceedings: Conducting closed court hearings does not violate the rights of participants.

A closed trial is permitted to protect state secrets, in cases of sexual offenses, and when required for the safety of victims, witnesses, or other parties to the proceedings.

Closed hearings are conducted in strict accordance with the rules established by the Criminal Procedure Code. Participants in the process have full access to case materials and all means necessary to protect the rights and freedoms of the accused.

On the 2022 transition of the Supreme Court Chair to the Senate before the end of term:

The Chair of the Supreme Court was elected by the Senate on December 11, 2017, and relieved of duties on December 8, 2022 – three days before the expiration of the term. This is considered normal practice.

On restricted access to court hearings regarding the January events: Closed trials were held only in cases involving state secrets. Their disclosure would violate Kazakhstan’s national interests. Regardless of whether a trial is open or closed, the defendant is guaranteed the right to defense, including a professional lawyer. Participants in the process are entitled to full access to case materials and all available tools to protect the rights and freedoms of the accused.

On online hearings: Kazakhstan’s courts transitioned to remote hearings during the state of emergency introduced due to the coronavirus pandemic (from 2020, March to 2023, May).

Most hearings (including those related to the “January events”) were held in court buildings without the physical presence of participants, in compliance with safety requirements and to prevent the spread of the virus among participants.

Conducting online hearings did not prevent citizens from protecting their violated rights and legitimate interests.

The Supreme Court is conducting extensive work to properly organize online trials. All ODIHR recommendations are being taken into account in this process.

On appeals not fully considering the arguments of the parties: The main trial is held in the court of first instance. The task of the court of appeals is to verify whether the first instance proceedings complied with the law, whether all circumstances were fully examined, and whether the rights of the parties were observed and the decision was lawful and justified.

The brevity of appellate rulings and hearings does not mean that judges fail to study or review the arguments of the complaints and case materials.

It should be noted that appellate judges study the complaints and case materials before the hearing.

If the court of appeals agrees with the findings of the first instance, this is stated in its ruling without restating the reasoning. There is no need to repeat the arguments of the lower court, since by confirming the legality and validity of its decision, the court of appeals agrees with it.

Introducing ODIHR’s recommended amendments to the Criminal Procedure Code would not improve the quality of appellate work but would rather result in duplication of first-instance court decisions.

If the court of appeals finds that the first instance hearing was conducted with a significant violation of the law or incomplete examination, it cancels the verdict and re-examines the case on the merits.

Furthermore, the court of appeals is no longer authorized to return the case to the prosecutor or to the first instance court.