There is much to see and much to learn for legal tourists nowadays – when travelling in what Europeans use to designate as the East, but also in their own world, the so-called West, where interesting discussions are closely connected with the manner in which the legal legacy of the former Soviet Union is being dealt with. Especially interesting would be what is happening in Kazakhstan, positioned as it is on the crossroads of East and West!
First thing to be noticed is that there the ongoing debate is more on the modernisation, not of the law itself, but of the manner in which it will be applied. It is clear that Kazakhstan resolutely decided to opt for the Rule of Law. But what exactly does this mean? Many lawyers are severely disturbed by the current clash of opinions between the leading political circles in, for instance, Hungary and Poland on the one side, and important parts of the European Union on the other. Obviously, Rule of Law looks quite different in Warsaw than in Brussels. What kind of changes will the new policy bring for Kazakhstan – in any case: what kind of changes could be expected? Here follow some remarks from a criminal lawyer. (These remarks are inspired by the draft law of the Republic of Kazakhstan “On making amendments and additions to some legislative acts of the Republic of Kazakhstan on further modernisation of the criminal process.”
What is Rule of Law?
Amongst lawyers there is a general understanding on what the Rule of Law implies – but decidedly not more than that. Clearly there is a lack of definition, and the implementation of the Rule of Law is different wherever one goes. General agreement, however, exists that under the Rule of Law not only everyone within a jurisdiction is bound by the rules of the national law, but also, and even in the first place, all government organs themselves. Whoever commits a crime within the jurisdiction should be sure that, when he is caught, he will be punished according to the law, after a fair and speedy trial in which an independent court decides on his guilt, according to fixed rules of evidence, based on the presumption of innocence. Independence of the courts, presumption of innocence, fixed rules of evidence are guaranteed by the current Kazakh Code of Criminal Procedure (KCCP, see e.g. Articles 22 and 19). But what about, for instance, Article 35 of KCCP – should a court have the power simply to avoid any decision on the guilt of a defendant, when it finds that there is not enough evidence against him? Or has every defendant the right to a decision on his guilt? Does the Rule of Law not imply that the courts in such cases have to decide for an acquittal, instead of simply sending them back to the prosecutor? And what about the defence? Would not everybody who is brought before a court and can’t pay for his defence have a right to free legal aid? At least when he is facing imprisonment?
The Prosecution Service used to supervise the close observation of the law by citizens and by all government officials, in the most general sense; this led to an accumulation of many functions and responsibilities. By now it is clear that in modern Kazakhstan this will come to an end. Moreover, under the Rule of Law it would not suffice that one government authority supervises the other. It decidedly requires that the process of investigation and prosecution of offences is integrated within a permanent review system by independent organisms or institutions. Those could be what the Scandinavians call an ombudsman, but most countries are preferring (a kind of) judicial review – or combinations of both. In their opinion an effective system of review would find its centre of gravity at the independent courts.
There is more. Under the Rule of Law everyone within the jurisdiction who becomes a victim of crime (or thinks that he is in this position) should be sure that this (alleged) crime will be investigated speedily, and independently from the status he himself and the supposed perpetrator of the crime might have within the community. The law should provide for effective means to file complaints about non-investigation and non-prosecution. There should be no prerogatives for supposed perpetrators of corruption or white collar crime (so-called business crimes included). Instead the combat against corruption should have absolute priority. And there should be no pretrial detention without strict necessity, to be assessed by a judge. When a judge has ordered pretrial detention the detainee should leave the premises of the police forces and be brought to a prison, in order to minimize the risk of undue pressure.
But for many people Rule of Law means even more. The European Union, for instance, found that the Rule of Law implies ‘a constitutional system by which the different organs of the state are aligned and limited in such a way that the state cannot illegally infringe a citizen’s right.’ This is especially meant to express that an efficient implementation of the Rule of Law requires a division of powers between legislative, judicial and executive organs, in such a way that a certain equilibrium is created between the three of them. In this way Rule of Law also presupposes a trustworthy political system. The creation of checks and balances would be the guiding principle. The law on criminal procedure, for instance, should be based on such a system of checks and balances that the risk of fraudulent or corrupt acts or influences is kept at a minimal level. But again this would not suffice; Rule of Law not only requires a trustworthy judicial, but also a trustworthy financial system.
In any case Rule of Law is non-existent as long as the courts do not enjoy absolute independency and the judges may fear to be punished or otherwise corrected for the content of their decisions. All necessary oversight of the factual behaviour of the members of the judiciary should be in the hands of the judiciary itself.
A separate question is whether a jury system is still acceptable in all cases. It is clear that juries generally are unable to understand complex cases like frauds and moreover are liable to undue influence in cases of organised criminality and terrorism.
More in detail: criminal prosecutions
It seems obvious that investigation of offences should be entrusted to a specialized organism, forming part of the regular police. Exceptions could be acceptable only when others would be better equipped to do so. In many countries an example is offered by the Internal Revenue Service.
Here we find a special problem: what about prosecutions? The European Union designated ‘status and role of the public prosecutor’ as one of the four major components of the Rule of Law – next to an independent judiciary. Should the public prosecutor be as independent from ‘the executive’ as the courts are? Here we meet very different opinions. Yes, a public prosecutor is a magistrate, like a judge, with a very special responsibility – but arguments for independency of the judiciary are much stronger than for independency of prosecutors. Should the decision to prosecute strictly be governed by law, or also by expediency? Should there be a duty to prosecute all offences that have been cleared up – like in Italy and Germany? Which should be the influence of parliamentary control? Anyway it is clear that Rule of Law is no obstacle for a system in which the prosecution service is directed by, especially, the Justice Department of the national government. In most (but not all) European countries it is accepted that the government, especially the Minister of Justice, has the power to decide on the general policy of the Prosecution Service, but also that this Minister should abstain as much as possible from intervention in individual cases.
Meanwhile, the relation between the prosecution service and the police should be clear and established by law. But what should this relation be? The principle of checks and balances makes it preferable that decisions whether to prosecute are not taken by the same organs as those responsible for the investigation of the offence. This needs some further elucidation. Of course, in the first place, there should be no possibility to cover up misbehaviour during the investigations by not prosecuting. The police should not be placed in the difficult position to disprove insinuations of such cover-ups. But there is much more to it. Investigating and prosecuting offences are very different activities, asking for very different qualifications. Prosecution requires a certain distance from putative offences and from (potential) defendants. For the investigator this distance is difficult to maintain. The prosecutor should be able to correct errors made in the investigation; but for all human beings it is difficult to correct their own mistakes. This became especially clear in the United Kingdom, where prosecutions for a long time have been in the hands of the police and other government organs, like Customs and Excises. The last mentioned government agency had to abandon this competence after some high profile blunders, leading to disastrous time- and money-consuming prosecutions that ended in sensational acquittals. Not only the public, but also the police itself should be protected against such situations. Nowadays it seems nearly generally accepted that the police should not itself have the power to prosecute, except in cases of minor offences or contraventions.
Giving guidance to the police
The police itself should be held responsible for the technical quality of all investigations – speed included. But like all government organs it needs supervision. As the prosecution service will be held responsible in court for the legal quality of investigations of all offences that it prosecutes, it would only be practical to charge it also with general accountability for the quality of the police investigations. Public prosecutors should not only be independent from the investigative authorities, but have the power to oversee and review investigations. Moreover the prosecution service should be competent to order investigations if the police omits to do so. Under certain conditions it could also be empowered to stop further investigations. Who else would be competent to do so?
In all cases of serious offences supervision should be proactive: the prosecutor should be involved as soon as investigations are started by the police, he should give guidance to the investigation, and guarantee its speediness.
However, in cases of minor crimes like shoplifting it could be sufficient when supervision of investigations by the Prosecution Service would be retroactive, and the prosecutor simply waits until cases are send to him by the police, or complaints by citizens are received by him.
Infringements upon civil rights and liberties
We have to face the fact that effective investigation of offences generally requires infringements upon civil rights and liberties. However, this should be kept to a minimum and never be allowed without a formal permission by a member of the prosecution service (so, for example, search and seizure in office buildings). More serious infringements (like pretrial detention, and seizure in habitations and eavesdropping) should only be allowed, upon an express request from a prosecutor, by a judge (examining magistrate).
Prosecutors and defence lawyers should also have the right to file requests with the examining magistrate to perform certain investigative acts, like interrogations of witnesses, reconstructions, ordering an expertise etc.
Some concluding remarks
When the legal tourist returns at home he will reflect upon all his experiences on the endless steppes of the ninth biggest country on earth, lying in the heart of Asia, but at the same time – although for a very small part – still within the boundaries of Europe. He will be amazed at the speed of modernisation; but at the same time he will be aware that changing people is more important than just changing the law. Accepting new attitudes will be more difficult and far more time consuming than creating new legislation, new procedures and a new organisation of the judicial system. This will require much schooling and intensive training. The challenge to all lawyers – young and old – will be enormous; but the country that created the new city of Astana would certainly be equal to this task. And the last remark: the working of the new system needs to be monitored accurately. This cannot be done without reliable criminal statistics. It should be the task of the police, the prosecution service, the courts and the prisons themselves to provide at a regular basis such statistics, and comment on all trends they are bringing to light. Statistics is what will form the guide book for future legal tourists.
The author is an international expert with the EUCJ, a project funded by the European Union (EU) and aimed at strengthening the rule of law in Kazakhstan, and is professor of criminal law and criminal procedure at the Open University of the Netherlands (retired); a member of the government Committee for the Modernisation of the Dutch Code of Criminal Procedure.