Kazakhstan Institute for Strategic Studies

under the President of the Republic of Kazakhstan

The Address to the People of Kazakhstan by President

of the Republic of Kazakhstan – Kassym-Jomart Tokayev

A strong system «Responsible State - Responsible Society - 

Responsible Person» must be perpetuated in our country.

Slyamzhar Akhmetzharov., Master of Political Science and International Relations, Senior Research Fellow of the KazISS under the President of RK

Abstract. The institution of jury trials has been introduced in Kazakhstan in 2007. However, despite more than decade of experience, jury trials are rarely applied in criminal justice practices as well as have little impact on the rule of law. This study presents the main barriers that set obstacles for the development of jury institution in Kazakhstan. Author argues that mixed model of jury trial, limited jurisdiction of jury trials and manipulation with the jury-made verdicts undermine the effectiveness of this institution and result in the decorative role of jury trials in the framework of Kazakhstani justice system.

Key words: jury trials, accusation bias, institutional resistance, verdicts, justice

БАРЬЕРЫ В РАЗВИТИИ СУДА ПРИСЯЖНЫХ В КАЗАХСТАНЕ

Слямжар Ахметжаров

Старший научный сотрудник КИСИ при Президенте РК, Магистр Политологии и Международных отношений

        Аннотация. Институт суда с участием присяжных заседателей был введен в Казахстане в 2007 году. Однако, несмотря на более чем десятилетний опыт, судебные процессы с участием присяжных заседателей редко применяются в практике казахстанского уголовного правосудия, а также мало влияют на верховенство закона в стране. В данном исследовании представлены основные барьеры, которые препятствуют развитию института присяжных в Казахстане. Автор утверждает, что смешанная модель суда присяжных, ограниченная подсудность уголовных дел суда присяжных, а также манипулирование вынесенными приговорами присяжных заседателей подрывают эффективность данного института и в целом приводят к декоративной роли судов присяжных в системе казахстанского правосудия.

        Ключевые слова: суд присяжных, обвинительный уклон, институциональное сопротивление, вердикты, справедливость

ҚАЗАҚСТАНДАҒЫ АЛҚАБИЛЕР СОТЫНЫҢ ДАМУЫНЫҢ КЕДЕРГІЛЕРІ

Аңдатпа. Қазақстанда алқа билер соты 2007 жылы енгізілген. Алайда, он жылдан астам тәжірибеге қарамастан, алқа билер соты қазақстандық қылмыстық сот ісін жүргізу практикасында сирек қолданылады, сонымен қатар елдегі заңдылыққа аз әсер етеді. Бұл зерттеу Қазақстандағы қазылар алқасының дамуына кедергі болатын негізгі кедергілерді ұсынады. Автор алқабилердің аралас моделі, алқабилердің қылмыстық істеріне шектеулі қарау, сондай-ақ алқабилердің үкімдерін өзгерту бұл институттың тиімділігіне нұқсан келтіреді және әдетте қазылар алқасының қазақстандық әділет жүйесінде формальды рөліне алып келеді деп мәлімдейді.

Түйін сөздер: алқабилер соты, айыптау үкімі, институционалдық қарсылық, үкімдер, сот төрелігі

        Introduction

According to various international ratings, which include a wide range of indicators of measuring the effectiveness of legal system, Kazakhstani justice system is considered as unfair. In 2018 in Rule of Law Index, Kazakhstan was placed 64th among 113 countries [1], while in the Freedom House rating, Kazakhstan was indicated as “not free” [2]. Poor performance of Kazakhstani criminal justice system can be partially explained by the existence of a pro-accusation bias, which also can be traced in vast portion of post-soviet countries [3]. The core principle of this phenomenon is about a tendency, when judge in most cases issues conviction verdicts.

Indeed, according to statistics from General Prosecution office the conviction rate in Kazakhstani criminal proceedings is more than 99% (Table 1).

Table 1. Conviction rates in Kazakhstani criminal proceedings, 2009-2018

 

Year

Total number of people tried in criminal courts

Number of convicted people

Ratio of convicted persons

2009

39 717

39 629

99,8 %

2010

35 741

35 633

99,7 %

2011

27 066

26 972

99,7 %

2012

22 831

22 749

99,6 %

2013

26 855

26 784

99,7 %

2014

24 882

24 841

99,8 %

2015

30 898

30 736

99,5 %

2016

30 861

30 789

99,8 %

2017

32 647

32 549

99,7 %

2018

31 984

31 921

99,8%

Total

303 482

302 603

99,7 %

Source: http://service.pravstat.kz

What are the implications of Kazakhstani conviction rate statistics? Generally, it means that in Kazakhstan if the case goes to the criminal court, there is a 99% probability that the defendant would be found guilty of alleged crimes. In other words, ordinary Kazakhstani citizen literally does not have any chance of being acquitted in the criminal court.

Interestingly, Kazakhstan has already undertaken few steps in order to reduce the pro-accusation bias and consequently develop the rule of law principle. Back in 2007 the state decided to introduce the institution of jury trials into the domestic criminal justice system. Jury trials are widely considered as the important democratic attribute of the many advanced nations of the world [4]. As a matter of fact, conviction rates of jury trials in Kazakhstan are considerably low compared to judge-only trials (Table 2).

 

Table 2. Conviction rate of jury trials, 2009-2018

 

Year

Total number of people tried in jury courts

Number of convicted people

Ratio of convicted persons

2009

116

101

87,1 %

2010

377

334

88,6 %

2011

491

461

93,9 %

2012

379

355

93,7 %

2013

319

289

90,6 %

2014

121

118

97,5 %

2015

61

59

96,7 %

2016

75

67

89,3 %

2017

128

123

96,1 %

2018

87

82

94,2%

Total

2 154

1 989

92,3 %

Source: http://service.pravstat.kz

Generally, lower conviction rates in jury trials compared to ordinary trials signify about the objectivity and effectiveness of jury institution in deciding criminal cases. However, as it can be noted total number of persons (2 154) tried in jury courts during 2009-2018 years constitute less than 1% from the quantity of all people (303 482) tried during that period in criminal courts of Kazakhstan. The core reason for the huge discrepancy in the number of cases decided by single judge versus cases considered by juries is the limited jurisdiction of jury trials. Currently, only criminal cases, which are punishable by death penalty or life imprisonment, are available for jurors’ consideration. So, the logical question emerges: why despite the effectiveness of jury trials in reduction of pro-accusation bias, they are used so rarely?

          It should be recognized that the development of jury trials in Kazakhstani framework is a complicated issue. Since it does not only have legal aspect, but also the political one. The core principle of jury trials is that ordinary citizens get an opportunity to administer the justice. In other words, the state shares “power” with the people. Consequently, the transition of justice administration from the state officials to ordinary citizens cannot happen easily. Therefore, despite more than ten years of experience - jury trials have a limited role in Kazakhstani legal practices and in most cases considered as the decorative institute. In order to have a complete understanding of this issue we have to analyze the roots of the problem.

 

Jury trials as the essential component of justice systems

Prior analyzing the key barriers in the development of jury trials in Kazakhstan it worth considering the views of scholars about the institution of jury trials and its function within the criminal justice systems. Majority of scholars highlight the important role of jury trials in promoting the democratic principles. Blackstone argues that jury trials in England prevented the Crown from prioritizing the personal interests over the popular public opinion [5]. According to Devlin, the jury institution serves as a shield for individuals against the abuse of politicians [6].

Furthermore, according to Hannaford and Munsterman [7]; Hazelwood and Brigham [8] in the US context the judicial system is dominated by prosecutors and judges, however jury trials allow the representation of the voices of ordinary citizens in the judicial branch of government. Also, White indicates that every individual should have a right to enjoy a trial, which is considered by his or her peers: “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge” [9].

According to Boatright, the jury panel boosts the confidence of the accused individual that the case would be considered in accordance with high standards of fairness, impartiality and competiveness of parties [10]. Next, several empirical studies indicate the positive correlation between the involvement of society in jury trials and the civic engagement levels [11] [12]. Scholars point out that former juries become inclined toward participation in the political life of the country. This is because jury processes train the values of accountability and responsibility among the members of jury panel. More broadly, jury trials provide the opportunity for ordinary people to “govern”. Alexis de Tocqueville almost two centuries ago compared the jury panel with mini-parliament, he particularly mentioned: “the jury is the both the most effective way of establishing the people's rule and most effective way of teaching them how to rule” [13].

It should be noted that most of the “compliments” of scholars toward the institution of jury trials are addressed to its classical model. The classical model is used primarily by common law states, including the UK and US. In this model the responsibilities between the juries and judge are separated: juries only decide whether defendant is guilty or not, whereas the judge determine the measure of punishment. On the contrary in the mixed model of jury trials juries and judge mutually share the responsibilities. In other words, the verdict and measure of punishment are decided by both juries and judge. The mixed model of jury trials are primarily exercised in the countries with continental legal system such as France, Germany, Kazakhstan, etc.

Interestingly, the mixed model of jury trials comes under criticism for the flaws in the provision of transparent and fair trials. Several studies point out that in jury trials with mixed model, juries on many occasions are expected to agree with the views of judge [14] [15] [16]. What is more, Ferri suggests that using the jury trials in authoritarian context is ineffective initiative, since juries are not fully independent and afraid of the consequences of their decisions [17].

Number of studies indicate that in the framework of post-Soviet states the introduction of jury trials could be considered as the step forward to effective justice system. Kovalev points out that in post-Soviet context juries as opposed to judges are not concerned with the opinion of elite groups or higher judicial instances [18]. Thus, juries are more autonomous and independent in comparison with judges. Consequently, juries decide criminal cases in accordance with their moral values, while judges decide under the pressure of external powers.

Also, Kovalev argues that the introduction of juries into the trial process positively influence on the quality of evidences and arguments, which are presented by prosecutors and advocates. This happens, since involved parties acknowledge the fact that they need to convince not only the judge, but also twelve other individuals with their own principles and beliefs. On top of that, Kovalev implies that jury trials are effective way of overcoming the corruption practices at courts. Since, juries break well-established chain between the prosecutors and judges on the one side and advocates on the other. Simply, it is costly to bribe the members of jury panel; also it is risky to bribe the juries, since they may reveal it to the public.

          The implementation of jury trials in Kazakhstan

Limited number of researches has been conducted regarding the Kazakhstani practices of jury trials. The problems identified by scholars and legal practitioners touch upon various institutional aspects of jury trials.

          Firstly, vast portion of criticism is directed toward the mixed model of jury trials. Utebekov points out that in the context of Kazakhstan it is unacceptable to put a judge in the room with juries in order to decide the verdict and level of punishment. Since judge’s experience and authority make the juries vulnerable in front of the “expert” opinion of the judge [19]. The facts of pressure and influence of judges on juries, numerous times become public [20] [21] [22].

          Secondly, Zinovich indicates that during the short period of the history of jury trials in Kazakhstan, the jurisdiction of the institution has experienced significant changes due to “manipulations” made by law-enforcement agencies [23]. At the initial stage, during 2007-2009 years, only the criminal cases, which are punishable by death penalty, have been available for the consideration by juries. In the next stage, during 2010-2013 years the competence of juries has been substantially expanded. All the cases, which are punishable by more than twelve years of imprisonment, become available for juries. However, during 2014-2015 years the jurisdiction of jury trials has been limited to its initial level. After the introduction of “100 steps program”, the competence of juries has been expanded only by additional four episodes of crimes.

Thirdly, advocates’ community of Kazakhstan point toward the negative trend of overturning of juries’ acquittal verdicts. Kanafin argues that judges in most cases manage to persuade or influence the juries to produce the conviction verdicts. However, in some cases judges lose control over the juries and they may vote for acquittal verdict. In that circumstances, it is an ordinary practice for higher appellation and cassation courts in Kazakhstan to overturn the juries acquittal verdicts. Kanafin implies that almost half of acquittal verdicts of juries produced during the period of 2014-2017 years have been overturned by higher judicial instances [24]. From the Kanafin’s viewpoint, such a practice undermines the reputation of the jury institution in Kazakhstan and set obstacles for its further development.

After we have considered the main trends in the Kazakhstani criminal justice practices as well as opinions of scholars regarding the role of jury trials in fostering the rule of law, we can elaborate on the main barriers that set obstacle for the development of jury institution in Kazakhstan.

                            

First barrier: mixed model of jury panel

From the early 2000s prior to the introduction of jury trials there was a great deal of heated debates among the expert groups regarding the model of a jury institution [25]. On the one side, the majority of attorneys, law-scientists, representatives of international NGOs and some deputies of Parliament supported the idea of introducing the classical American model of jury trials, where jurors decide the verdict, while judge determines the measure of punishment. On the other side, most of the judges and prosecutors suggested to introduce mixed model of jury trials, where verdict and the level of punishment are decided mutually by jurors and judge. Eventually, this very model has been approved by the parliament in 2006 and implemented into practice starting from January 2007.

          In Kazakhstani framework the mixed model of jury panel poses a threat to the independence and autonomy of jurors in decision-making. Since, judge based on the experience and knowledge has certain kind of authority over the jurors [26]. Thus, judge is most likely to impact jurors on issuing the suitable verdict. There are many examples from jury trial practices, when the influence and pressure of judges have become a public knowledge due to complaints of jurors to the journalists.

 

Second barrier: manipulation with the jurisdiction of jury trials

According to Kazakhstani criminal procedure code the jury trial may be applied on two conditions. Firstly, the felony for which the certain individual is going to be tried should be included in the list of criminal cases available for jurors’ consideration. Secondly, only upon the fulfillment of the first condition the defendant has the right to demand the trial by jurors.

The range of cases available for jurors’ consideration has been fluctuating during more than ten years of experience of jury trials in Kazakhstan (Table 3).

Table 3. The availability of criminal cases for jury trials, 2007 – 2018

 

Stage

Years

Number of available episodes

Introduction

2007 - 2009

1

Expansion

2010 - 2013

24

Limitation

2014 - 2015

1

Fake expansion

2016 - present

5

Source: http://service.pravstat.kz

During the initial stage only the murder with aggravated circumstances could be considered by jury panel. In the next period, starting from 2010 the competence of jury trials has been expanded to all severe criminal cases, which consist of 24 episodes. Sudden increase of acquittal verdicts across various range of criminal cases demonstrated the weakness of evidences brought to the courts by investigators and prosecutors. As a result, in 2014 the jurisdiction of jury trials has been limited to its initial level.

In 2015 the President Nazarbayev specifically mentioned the need for the expansion of jury trials in “100 Concrete Steps” policy [27]. It is mentioned in the 21st step of the national program: “More use of jury service in trials. An implementation of a legal definition of categories of criminal cases, where a jury trial must be mandatory”. Thus, in 2016 the Supreme Court has included four additional episodes to the jurors’ competence: involvement of children into criminal activities, kidnaping, human trafficking, children trafficking [28]. (Law of the Republic of Kazakhstan from 31 October, 2015 N 378-V). Surprisingly, during 2016-2017 years only one criminal case has been considered by jurors in regards of newly added criminal episodes. So, there was a fake expansion. Instead of adding the whole category of criminal cases, only four episodes have been included, which almost never happen in the practice.

The outcomes of the manipulations with the jurisdiction of jury trials can be traced through the dynamics of jury trial practices during the 2007-2018 years (Picture 1).

 

 

Picture 1. The number of criminal cases considered by juries, 2007-2018 years.

 

Third barrier: significant control over the jury-made verdicts

According to the Kazakhstani criminal procedure code the court verdicts are subject for cancellation, only in case of procedural violations. In Kazakhstani legal practices the average rate of verdict cancellations by appellate and cassation courts is less than 1%. In other words, there is a very low possibility that verdicts issued in criminal courts would be changed in the future by higher judicial branches. However, when it comes to statistics regarding the jury courts, the situation is completely different. For instance, the average rate of cancellation of acquittal verdicts is about 50% (Table 4). To put its simply, in Kazakhstan half of acquittal verdicts issued by jurors are overturned by higher judicial branches.

Table 4. The cancellation of jury verdicts at appellate and cassation courts,

2012 – 2017

 

Year

Number of acquitted persons in jury courts

Number of overturned acquittal verdicts in appellate and cassation courts

Ratio of overturned acquittal verdicts

2012

24

11

46 %

2013

30

14

47 %

2014

3

2

67 %

2015

2

1

50 %

2016

8

5

63 %

2017

5

1

20 %

Total

72

34

47 %

Source: http://service.pravstat.kz

 

The tendency of overturning the jury-made verdicts is linked to the prosecutors’ interests [29]. Since, when jurors acquit the defendants, it shows that prosecutor has not provided enough evidence to prove the guilt of the person. Consequently, the acquittal verdicts negatively affect on the career prospects of prosecutors. That is why, prosecutors approach the appellate and cassation courts in order to overturn acquittal decisions of jurors.

As practices demonstrate, after the acquittal verdict is cancelled, the case goes for consideration by new jury panel. Often times, newly formed jury court convicts the defendant. There are some absurd situations occur, when the defendant’s case goes through several jury panels until the conviction verdict is issued. For instance, in Western Kazakhstan, Uralsk the defendant B.Aitbayev has been tried 3 times for the single case. Each time, when the jurors acquitted the defendant, the decision has been overturned in appellate court.

 

            Conclusion. The idea of ​​introducing a jury institution in the judicial practice of Kazakhstan is absolutely reasonable. This is because ordinary citizens are provided with the opportunity of direct participation in the administration of justice. On top of that, jury trials demonstrate higher rates of acquittal verdicts compared with the ordinary trials. However, as the facts demonstrate the development of jury institution in Kazakhstan face the resistance from the law-enforcement bodies. Despite the former president’s support of jury trials indicated in the “100 concrete steps” policy, the law-enforcement bodies continue to manipulate with the jurisdiction of the jury institution as well as the outcomes of jury-made verdicts.

           

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