Constitutional Court: Risks and Expectations

Every Kazakh citizen will have the right to appeal to the Constitutional Court from Jan. 1, 2023. 

Igor Rogov

The Prosecutor General and the Ombudsperson will be able to challenge the constitutionality of a law or a legal provision and establish the truth before the Constitutional Court. Igor Rogov, the former Deputy Chairman of the Constitutional Court of Kazakhstan (1992-1995), former Chairman of the Constitutional Council (2004-2017), Chairman of the Commission on Human Rights under the President of Kazakhstan, Member of the Venice Commission of the Council of Europe for Kazakhstan, spoke about the reasons why it was decided to recreate the previously existing constitutional body and how the citizens will exercise their rights. 

The Constitutional Council will be replaced by the Constitutional Court. Could you please outline the concrete role of the Constitutional Court?

In general, it is quite difficult to speak about the differences between the Constitutional Council and the Constitutional Court today, because these differences are gradually disappearing. 

The Constitutional Council first appeared in France, as a result of the constitutional reform under President Charles de Gaulle. It has nine members, who are appointed for nine years, and every three years a third of them are replaced.

We took this idea in 1995 when drafting our new Constitution. The working group, in fact, consisted of experts from France, including Roland Dumas, former Chairman of the Constitutional Council of that country. However, we decided to have only six Constitutional Council members, as well as the Chairman, and therefore a total of seven people. Half of the members change every three years.

The Constitutional Council of France originally considered the questions of the constitutionality of laws, which were adopted by the Parliament before being signed by the President. And if it decided that a law was unconstitutional, the President could not sign it.

In our country, when the Constitutional Council was first created, it was also empowered with the right of subsequent oversight. This means that even when a particular law has already entered into force and has begun to be applied, the courts have the right to apply to the Constitutional Council and suspend legal proceedings when considering any concrete criminal, civil or administrative case when they have doubts about the constitutionality of a particular norm of the law that affects human rights.

In practice, there were more than 30 cases unconstitutionality of laws and even international treaty norms, both following appeals by the courts and during preliminary monitoring. In other words, our Constitutional Council was already somewhat similar to the European constitutional courts.

The French, under President Nicolas Sarkozy, also added more oversight. Quite possibly, they borrowed it from us, because at that time, Pierre Mazeaud, Chairman of the Constitutional Council of France, came to us and admired the work of our Constitutional Court. Complementing us, he noted that not only did we adopt their experience, but we went even further by including subsequent oversight.

Now, the situation is reversed. They borrow our experience but go further by transferring individual complaints of citizens to the Council as well. As a result, today’s French Constitutional Council is not much different from many constitutional courts in other countries. By the way, not all constitutional courts in Europe have had the right to examine individual complaints since their establishment. In some cases, this right has been introduced gradually as a result of reforms.

In Russia, the most recent constitutional reform gave the Constitutional Court the right to do preliminary review. Previously, they only reviewed laws and other legal acts that had entered into force. Thus, legislative practice around the world is gradually blurring the distinction between constitutional courts and constitutional councils.

Therefore, when in 1995 the decision was made to abolish our Constitutional Court and replace it with the Constitutional Council, I did not encounter any special arguments in the media. Personally, I attributed it to the influence of the French school.

However, when I saw how the new Constitutional Council works, I was pleasantly puzzled. The fact is that the first Kazakhstan Constitutional Court had a lot of formal procedural points which burdened the process and made it cumbersome. We even had procedural elements such as the questioning of witnesses. According to the statistics, the Constitutional Court of Kazakhstan examined only slightly more than ten cases in the first three years of its work. This happened not because we were idle, but because we had to conduct a lot of formal procedures.

But in that case, we still run the risk of returning to a low number of appeals to the Constitutional Court.

Yes, that is a possibility. Indeed, at that time we did not have very high figures in terms of statistics. And that is why, I think, during the preparation of the Constitutional Law on the Constitutional Court it is necessary to simplify all the organizational moments. There is no need to blindly reproduce the procedures that exist in ordinary courts.

By the way, the increase in the number of judges from seven (the number of members in the Constitutional Council) to 11 should be welcomed. After all, a particular judge-rapporteur deals with each case and prepares it for consideration. And the number of appeals considered due to the change in the competence of the court will naturally increase. I am concerned that even 11 judges will not be enough. But everything will depend on the number of appeals, and there are likely to be many.

What’s most important is to ensure that the high expectations of the population will not turn into disappointment, because it is impossible to consider all the appeals and satisfy the claims of all citizens. We must be realistic: there cannot be many unconstitutional laws in principle. That’s why we have deputies passing laws.

There is a presumption of constitutionality of laws: a law is deemed compliant with the Constitution if the contrary is not established by the constitutional oversight body (the Constitutional Council or the Constitutional Court).

In short, there are definitely certain things to work on. But overall, I would like to point out that the return to the Constitutional Court is precisely due to the desire to strengthen the human rights element of our Constitution, to make the citizens feel protected so that they can appeal any unconstitutional decision if they believe that to be the case.

This raises the level of human protection, rights, and freedoms to a higher level. It should be noted, however, that today citizens can also appeal to the Council indirectly, but only at the request of local courts if they deem it necessary.

Previously, members of the Constitutional Council repeatedly proposed initiatives to create a mechanism that would force judges to be more attentive to the requests of the participants of the process to appeal to the Constitutional Council, and that it would be possible to appeal against the refusal of the court to grant such a request. But today we see that the issue has been resolved more radically: the Constitutional Council will be abolished and it will be replaced by the Constitutional Court, where citizens’ complaints will be dealt with as well.

Not the majority, but many people identify the Constitutional Court with the Supreme Court. Is it even possible to draw an analogy between the two?

It is a reasonable question because in some countries the Supreme Court has the same functions as the Constitutional Court. It considers specific civil, criminal, and other cases, and at the same time, it can consider the constitutionality or unconstitutionality of certain acts, including laws.

The United States is an example of this. They do not have a Constitutional Court, and, in fact, its function can be performed by the Supreme Court. Thus, it can declare constitutional or unconstitutional any federal act, including laws.

How appropriate is it to merge them in our country? Some say that if we transferred these functions to one court, it would be more economical and efficient. Of course, all this has been discussed many times. Both in Europe and in European structures there have been such proposals. But I would like to point out several considerations which do not favor this idea.

Firstly, examining the constitutionality or unconstitutionality of a law or any normative legal act requires special training. It is possible to be an excellent judge who administers justice in criminal law or civil law. But here it is not enough, or maybe not necessary, to know perfectly the Criminal or Civil Codes. It is important to know and understand constitutional law. Not all judges of the ordinary courts have such knowledge. This does not mean, however, that a candidate for the Constitutional Court should always be required to have a Ph.D. in constitutional law. It is important that the person should prove himself/herself as a specialist in this field (expert work, publications, etc.).

Secondly, and more significantly, there is the issue of how to prevent conflicts of interest. There is also a certain problem: when the court that made a decision itself then considers the issue of the constitutionality or unconstitutionality of the law on the basis of which the previous decision was made, there could be a temptation to engage in the abuse of power and not necessarily for selfish reasons, we are not talking about corruption. It can be a purely psychological addiction.

Our Kyrgyz colleagues have had an interesting experience. They previously created a Constitutional Court. Later it was abolished, and the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic was created. Nevertheless, last year they still had to return to the idea of the Constitutional Court. And all because both the budget is separate, and appointments are made in a different way. Moreover, they are not dependent on one another. In fact, it was an independent body.

Furthermore, when the Constitutional Council of Kazakhstan was established, experts said that this would remove the possibility of a confrontation between the Constitutional and the Supreme Courts, which sometimes can be observed in some European countries. We never had such problems. But certain questions regarding the delimitation of the jurisdiction of claims in the Constitutional Court or ordinary courts did sometimes arise.

In this regard, it is very important to think through these aspects when drafting the new Constitutional Law on the Constitutional Court. We should not allow competition between the courts. Although, of course, there are always risks. After all, citizens may address questions on the constitutionality of not only laws, but also other normative legal acts, and these may be normative decisions of the Supreme Court. And then the Constitutional Court will have to consider the constitutionality of the normative decisions of the Supreme Court of Kazakhstan. There is nothing wrong with this. There cannot be untouchable bodies, but a certain discomfort in the relationship between members of the judiciary community may arise.

In addition, when I worked in the Constitutional Court, there were hundreds, if not thousands, of citizens’ applications, and we could not consider them, because most of them were not within our field of competency. They were, therefore, subject to review in an ordinary court. In other words, the claims may apply both to the competences of the ordinary courts, as well as to the Constitutional Courts.

The new version of Article 72 of the Constitution contains the following clause “The procedure and conditions for citizens to appeal to the Constitutional Court shall be determined by the Constitutional Law.” It is of the utmost importance how the legislator will stipulate this procedure and conditions.

In many European countries, for example, citizens may only apply to the Constitutional Court if their case has already gone through all the previous steps. It is possible that a similar requirement will be spelled out in our Constitutional Law.

I would recommend the drafters of the law take this fact into account, otherwise, the Constitutional Court will not be able to consider all the appeals. Because, practically, all normative legal acts affect the constitutional rights of one or another citizen.

For example, in the Criminal Code, all the articles of the Special Part outline some kind of punishment, which automatically means that they affect the rights of citizens. Consequently, a person facing criminal prosecution may always argue that the article of the Criminal Code imputed to him infringes his constitutional rights.

What can people expect from the constitutional amendments concerning the right of the Prosecutor General to appeal to the Constitutional Court?

It certainly strengthens the human rights aspect of the Constitution. The new paragraph 4 of Article 72 of the Constitution states that “The Constitutional Court, upon application of the Prosecutor General of the Republic, shall consider the matters indicated in subparagraphs 3 and 4 of paragraph 1 of the present Article, as well as the normative legal acts of the Republic of Kazakhstan, for their compliance with the Constitution of the Republic.” Let me clarify that these subparagraphs signify that the Constitutional Court will consider international treaties of the Republic for their compliance with the Constitution before their ratification, and give an official interpretation of the norms of the Basic Law.

I believe that this significantly strengthens the Prosecutor’s Office because the Prosecutor General can more effectively exercise his function of ensuring uniform legality, and its observance on the territory of the country. In practice, there may be different interpretations of the constitutional norms on various issues, and the Prosecutor General, as an official responsible for compliance with the uniform law, has the right to appeal to the Constitutional Court so that the interpretation of the constitutional norms is uniform.

Most importantly, the Prosecutor General now has the right to apply to the Constitutional Court to review any of the country’s legal acts to ensure their compliance with the Constitution, including laws. Moreover, he is not restricted by the content of these acts.

This means that if, for example, a citizen may apply only in cases where these acts directly affect his or her constitutional rights and freedoms, and the Ombudsperson only in cases where the constitutional rights and freedoms of a citizen are affected, then in order to ensure the rule of law, the Prosecutor may appeal any law, any legal acts which, in his or her opinion, are not in compliance with the Basic Law.

I should also note that our foreign colleagues have had many questions about this new competence of the Prosecutor General. Why are they interested in this amendment? The fact is that in Western Europe, the Prosecutor’s Office is a body that enforces the rule of law exclusively in the criminal sphere. It prosecutes on behalf of the state in court. The Prosecutor’s Office is not responsible for the state of the rule of law in general or for observing the rule of law in other spheres. Therefore, many Western European and American lawyers reproach Kazakhstan, Russia, and other countries for retaining what they believe is a Soviet remnant, where the prosecutor is empowered not only to ensure compliance with the rule of law in law enforcement activities but also to exercise the highest (general) oversight over the rule of law in the state.

At one time, our legislator was on the path of narrowing the prosecutor’s capacity in the area of general oversight. But with the introduction of this amendment, the function of oversight over the observance of legality in the country as a whole has, on the contrary, been strengthened.

I think this is the right approach. In my view, giving the prosecutor a new competence is justified. Because the prosecutor, by exercising supreme oversight, ensures the unified rule of law throughout the entire country. We have a unitary state. This ensures legal security for the whole country.

There is, nevertheless, another point to which representatives of the legal community often refer, expressing fears that this constitutional amendment will strengthen the prosecutorial component of the work of prosecutors in criminal proceedings. But I don’t think that will happen. Because the prosecutor is no less a person of interest than anyone else when it comes to the protection of human and civil rights.

At the same time, it is important to draw a clear distinction in the law between the supervisory functions of the prosecutor and his functions as an official who, within the limits established by law, carries out criminal prosecution. Here too, his powers in court proceedings should be comparable to those of the defense counsel so that there is a real adversarial relationship between the parties.

It should be said that this problem was partly raised back in 1995 when the current Constitution was adopted. The initial edition of Article 83 stated that the Prosecutor’s Office should supervise the observance of lawfulness in the Republic, including the supervision of the constitutionality of laws. But there was no mechanism for implementing this function in the Constitution, and during the next reform this competence of the Prosecutor’s Office was simply removed.

Now we have returned to it, but at a higher level. It is now explicitly stated that the Prosecutor General has the right to appeal to the Constitutional Court to ensure the constitutionality of the applicable laws and other legal acts.

And the Ombudsperson? According to the amendments, he or she is now also among those who have the right to appeal to the Constitutional Court.

Yes, this is true, and it is encouraging and gives hope that human rights will be protected to a greater extent.

And it’s important to note that if in relation to the citizens’ appeals there is a provision that the procedure and conditions of these appeals will be determined by the Constitutional Law, there is no such provision in relation to the Ombudsperson in the Constitution.

It is clear that when the relevant legislation is amended, a new law will be needed to spell everything out. In particular, will the legislator somehow regulate in which cases the Ombudsperson will be able to appeal to the Constitutional Court of Kazakhstan, whether in order to make such an appeal he is obliged to receive a complaint from a citizen or from a group of citizens, or whether the Ombudsperson will be able to do so at his or her own discretion? Is it necessary to stipulate whether the Ombudsperson is entitled to appeal only against the acts of the central state authorities or also local authorities?

It should be determined whether the Ombudsperson’s appeals to the Constitutional Court will not create competition with the ordinary courts, in particular the administrative court. After all, the Ombudsperson has the right to appeal to the ordinary courts to challenge certain acts.

How will these powers be divided? As I said previously, the state cannot be interested in creating such confusion and competition between the courts of general jurisdiction both at the level of the Supreme Court and the Constitutional Court and at the level of local courts.

It seems reasonable to outline certain conditions. But, to what extent will this comply with the Constitution, which does not outline any direct restrictions regarding the Ombudsperson’s appeals?

In short, there is still a lot to think about. But I hope that by September, when the President of the country promised to announce at the opening of the regular session of Parliament the concrete tasks he formulated for the legislators, we will already have an idea of the necessary steps needed to solve these and other issues.

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