15 November 2022, 16:02
Minister of Justice Kanat Mussin visited the Pavlodar region on a working visit. The purpose of the visit was to meet with local residents, talk about the activities and main directions of the agency, and explain some of the legislative norms and changes associated with them.
The Minister started his speech with a package of reforms announced by the President of Kazakhstan as part of his Address to the People of Kazakhstan. Kanat Mussin explained what the work of justice bodies is about, namely formation and development of national legislation, implementation of state policy in the sphere of legal services for population such as notary, advocacy, legal consultants, protection of intellectual property rights, enforcement proceedings, forensic expertise, state registration of legal entities and real estate rights.
"The biggest legal event of this year was undoubtedly the holding of the nationwide referendum, the introduction of amendments to the country's Constitution and the subsequent introduction of relevant changes to national legislation. The Ministry of Justice is the main developer of all those constitutional laws, which were the logical continuation of the amendments made to the Constitution. There was a relevant instruction of the President to this effect," the Minister of Justice said.
Draft constitutional laws "On the Constitutional Court of the Republic of Kazakhstan", "On the Ombudsman for Human Rights in the Republic of Kazakhstan", a bill amending the laws regulating the activities of political parties, the Assembly of the People of Kazakhstan, the Supreme Judicial Council, local state administration bodies, the procedure for restructuring the Accounts Committee into the Supreme Audit Chamber, as well as issues relating to the constitutional principle of the ownership of land, its subsoil, vegetation, etc. were developed. The above-mentioned legislative acts have been signed by the President of the country. They enshrine the changes made to the Constitution.
He also noted the changes regarding the term and number of terms of office of the President. This initiative, which was announced by the Head of State on September 1 this year, was translated into law. Now that this principle has been enshrined in the Constitution and in the Constitutional Law on the President, the norm that the President is elected once for a term of 7 years has come into force and as stated in the Constitution, is unchangeable.
"The next change that the people of Kazakhstan have long awaited is the creation of the Constitutional Court. The Law on the Constitutional Court was passed last week, signed by the President, published and will come into force on 18 November this year. The Constitutional Court will start functioning on January 1, 2023," Mussin added.
The Minister also explained why the Constitutional Court differs from other courts of the republic. Thus, according to him, the Constitutional Court is not part of the judicial system, it is an independent body of constitutional review and its main task is to check compliance of normative legal acts of any level with the Constitution. If only certain circle of state authorities and officials could address the Constitutional Council - the Head of State, Chairpersons of the Parliament, deputies of the Parliament's chambers numbering not less than 1/5 of their number, courts and others, now ordinary citizens of the Republic of Kazakhstan can address the Constitutional Court.
But there are peculiarities. The Constitutional Court is not a body where one may appeal against decisions of courts of general jurisdiction. Court decisions may be appealed, as before, in the respective appellate, cassation instances. The Constitutional Court may accept an appeal of a citizen who claims that the court of general jurisdiction that examined his claim or a claim against him applied in the course of examination a legal act, which, in his opinion, does not comply with the Constitution. In other words, the said normative act may be appealed by the citizen to the Constitutional Court precisely for its conformity with the Constitution. Accordingly, this will determine whether or not the court's decision on the said action is lawful.
There is, however, an exception to this rule. For example, if the construction of the normative legal act itself does not allow it to be interpreted in a different sense due to the imperative nature of the norm, i.e., simply put, when the norm provides "to do only so and no other way". In this case, such a normative legal act can also be challenged before the Constitutional Court, even if it has not been applied by the court.
"Other appeals by citizens concerning other normative legal acts that have not been applied by the courts or that are not peremptory in nature shall not be subject to review by the Constitutional Court. Of course, the Prosecutor General and the Human Rights Ombudsman can also apply to the Constitutional Court with the same questions," Mussin added.
By the end of this year, the Constitutional Court will be made up of 11 judges, including a chairman and a deputy. Only highly qualified lawyers with at least 15 years of work experience in the legal profession, impeccable reputation and must be at least 40 years old can be judges of the Constitutional Court. The term of office of judges is eight years. However, the same person may not be appointed as a judge of the Constitutional Court more than once.
The President is appointed by the President with the consent of the Senate of Parliament. The Vice-President is appointed by the President on the proposal of the President from among the judges. Four judges are appointed by the President, three judges are appointed by the Senate and the Majilis of the Parliament upon the proposal of the chairpersons of the Chambers of the Parliament. That is, Constitutional Court judges are appointed by different subjects.
The status of the Ombudsman has been considerably strengthened and is already defined in the Constitution. He has immunity on a par with Members of Parliament, judges and the Procurator-General, which allows him to exercise his authority independently of other State bodies and officials. The Ombudsman has the right to attend sessions of Parliament's chambers and have unrestricted access to organizations providing special social services and to prisons.
The Ombudsman will have regional representatives, in other words small local offices, which will enable him to be represented in all regions of the country and to have knowledge of the situation in the regions with regard to the protection of citizens' rights and freedoms.
Responsibility for obstructing the work of the Commissioner for Human Rights and his representatives is being established. All in all, this elevates the human rights institution - the Human Rights Ombudsman to a higher level, Kanat Mussin believes.
Amendments resulting from relevant amendments to the Constitution were also introduced regarding transition to a mixed electoral system both for elections to the Majilis of the Parliament of the Republic of Kazakhstan and to local representative bodies. It means that 30% of deputies to the Majilis will be elected from single-member districts and 70% from party lists as before. Regional Maslikhats will have 50 percent on party lists and 50 percent from single-member districts, while regional Maslikhats will have 100 percent from single-member districts.
"A ban was introduced for members of the Constitutional Court, the Central Election Commission, akims and their deputies to be members of political parties. That is, these officials must be free from the influence of political parties. If they are members of parties, they must leave them," the Minister of Justice said.
The constitutional norm of people's ownership of the land and its subsoil, the flora and fauna and other natural resources is also enshrined. However, one should understand that the said norm enshrined in the Constitution is of a principle nature; it does not by itself generate in each of us the right of ownership of a certain area of land or subsoil; it determines that use of the land, subsoil, flora and fauna and other natural resources must be carried out for the benefit of people of Kazakhstan. For example, the President of the country suggested that part of the income of the national fund, which is formed, as you know, including at the expense of use of subsoil resources of Kazakhstan, should be allocated for the needs of children. This is one example of the realization of the people's right to land ownership.
A periodic analysis of citizens' applications by the Ministry of Justice shows that people most often turn to notaries, lawyers and legal advisers in connection with the legal assistance they provide.
"Currently the amendments to the Law "On Notaries" simplify the procedure of registration of real estate transactions. Now it is possible to execute a transaction at any notary in the Republic without mandatory travel of citizens to the location of the property," Mussin said.
On June 20 this year amendments were introduced to the Law on Advocacy and Legal Aid which expanded the range of people who can receive free legal assistance in the form of legal advice to low income and large families, victims of domestic violence, torture, category 1 and 2 disabled people, and pensioners. According to Kanat Mussin, 6,000 citizens of the Pavlodar region have received free legal aid in the first nine months of this year.
In addition, those persons may receive free legal assistance in the courts on a number of issues, but not related to the business (on the recovery of alimony in large families, on domestic violence; to the participants of the Great Patriotic War, veterans of military operations, conscripts, persons with disabilities, the first and second groups, age pensioners). In addition to lawyers, the right to provide such assistance is now granted to legal counsels. That is, the range of subjects that can provide free legal aid has expanded, which has also become convenient for the public, because with the participation of legal consultants a much larger audience can be covered by free legal aid.
Kanat Mussin also spoke about simplified receipt of some services. For example, the birth certificate can be obtained without going to the registry office, but by using the e-government portal or mobile applications of second-tier banks (Kaspi and Halyk Bank). In other words, the birth certificate is now generated automatically.
"The birth certificate from the maternity hospital is sent directly to the Registry Office system, a document is generated there, parents receive an SMS congratulating them on the birth of their child and asking them to name the child. A reply SMS is sent and the child's birth certificate is automatically created, which can be obtained from the registry office on paper or directly to the smartphone in electronic format. This is how we make it easier for our little citizens to obtain their first legal document," the Minister of Justice said in more detail.
Accelerated electronic registration of rights to real estate on the basis of notarial transactions was introduced, which eliminated the need for citizens to apply to the "State Corporation" with paper documents for their registration, reducing the period from one working day to two hours.
As of July 2022, amendments have been adopted to provide for the registration of non-profit organisations electronically through "e-government", which eliminates the need to visit CSCs to submit paper documents for registration.
A total of 37 public services provided by the justice authorities are currently available to the public through the eGovmobile application.
The Ministry of Justice also deals with intellectual property issues. According to Kanat Mussin, the law does not fully regulate the activities of organizations managing property rights of authors on a collective basis. Therefore, amendments to the copyright law have been adopted. Now organizations are obliged to send each author a report on the collected remuneration and the amounts withheld from it to his personal account on the organization's website.
In some cases, it is difficult to collect maintenance due to the debtor's lack of permanent income and assets. Therefore, the Ministry of Justice regularly holds job fairs in conjunction with the akimats for the employment of debtors. It is possible to pay debts online.
But the execution proceedings, according to the Minister of Justice, is probably one of the most painful issues not only in the Pavlodar region, but also in the whole country. So, all in all there are 15 state and 90 private court bailiffs in the Pavlodar region.
Currently they are in charge of 322 thousand enforcement proceedings, 114 thousand of which have already been executed. The considerable part from the specified quantity is made by documents on recovery of the alimony. For the Pavlodar region this is about 17 thousand cases.
Here it should be noted that the recovery of alimony is not a one-time proceeding. It lasts for years, until the child reaches adulthood. Of course, there are problems that sometimes do not find a solution. There are cases when certain debtors, having real financial possibilities, deliberately avoid maintaining their children, hide their income and property. For all problematic enforcement proceedings on alimony recovery, bailiffs take enforcement measures.
For 9 months this year for non-execution of alimony payments in the Pavlodar region 173 debtors were held administratively liable (in Kazakhstan 2 823), 110 representatives were sent to police (in Kazakhstan 1 309), 124 debtors (in Kazakhstan 13 271) are under temporary travel ban in the Republic of Kazakhstan.
"In some cases, it is difficult to collect alimony due to the debtor's lack of permanent income and property. In this regard, the regional Justice Departments in conjunction with the Akimats organise regular job fairs to help debtors find jobs. For example, 327 such debtors were employed in 9 months of this year in the Pavlodar region," the Minister said, adding that alimony recovery is a long process and requires considerable efforts, so it is good that there are 7 private court bailiffs in the Pavlodar region that specialize in alimony recovery.
The Minister believes that such practice, including the establishment of specialised alimony recovery offices in Astana and Almaty, can be a factor to effectively address existing problems.
As to the procedures for payment of debts, additional services for the convenience of citizens have been created. It is possible to pay debts online through terminals installed at state border crossing points and in public places, as well as mobile applications of Kaspi Bank and Kazpost (Kaspi.kz and Post.kz).
When the debt is fully repaid the Automated Information System of Enforcement Authorities (AIS EIR) will automatically unlock the accounts and cancel the travel ban (for reference: Kaspi.kz paid 1 206 524 enforcement cases worth over 44 billion tenge (44 797 034 294 Tenge), via Post.kz 10 159 enforcement cases worth over 359 million Tenge (359 429 889 tenge) were paid.
On the other hand, citizens do not always learn about the imposed arrests and restrictions in a timely manner due to their carelessness, given the availability of relevant information services, and there are other reasons for lack of awareness. Therefore, the Ministry of Justice and the Ministry of Digital Development are currently working on the development of a unified system of guaranteed notifications. That is, every Kazakhstani citizen will receive notification from all state bodies about the presence of this or that debt, the need to perform an action, etc. It should be taken into account that no one will be able to say that he/she has not received a notice or was not aware, because from the moment of sending a notice to this system, a citizen will be considered notified.
Legal education is another activity of the Ministry of Justice.
"Few people probably know, we have a 24-hour free legal aid service 119. You can call 58-00-58 at any time by dialing the Astana city code and get advice on all legal issues. There is a free of charge constantly updated legal information system "Adilet" which allows you to get acquainted with the texts of all officially registered normative legal acts. Other information systems, such as "Paragraph" provides access to regulations for a fee," he informed.
Kanat Mussin also told what the agency is currently working on. Thus, in his address in September this year the President of Kazakhstan set before the Ministry of Justice major tasks to adjust the criminal and criminal procedural legislation, as well as to expand the scope of administrative justice.
As is known, with the adoption of the Administrative Procedural Code, administrative justice started working in the country more than a year ago and administrative courts appeared. Now any citizen of the Republic may appeal against a decision or action of any State body or official in an administrative court. At the same time he does not have to prove his arguments, on the contrary, the body or official, whose decision or action is appealed against, must prove to the court that he acted lawfully.
As the practice of the Administrative Procedure Code shows, the legal mechanisms provided for in it to regulate the relationship between the citizen and the state allow the citizen to protect his or her rights more effectively. If previously, for example, a citizen won a maximum of 15 cases out of one hundred disputable cases, today citizens win more than 50 cases in court proceedings.
"In addition, the Ministry of Justice has been charged with the task of revising the criminal and criminal procedural legislation. This is a very large layer of work that used to be handled by law enforcement agencies. But in order to avoid the influence of law enforcement agencies on the formation of the two most important branches of law, the work on them has been transferred to the civil department," Mussin said.
He also noted that the Ministry ofJustice has no law enforcement functions and does not conduct investigations or enquiries. Therefore, there is no departmental interest. There is a task to ensure objectivity in the work on the criminal code and the code of criminal procedure in order to ensure fair administration of justice. To that end, a large project office has been set up, to which eminent academics, representatives of the professional legal community and law enforcement officials have been invited.
The Minister of Justice also reminded the inhabitants of the Pavlodar region that the Legal Information Service 119 of the Ministry of Justice was available 24 hours a day to provide free advice to the population on all legal issues. All legal information is posted on the website of the Ministry of Justice and on the official social media accounts.