STATE INSTITUTIONS

CORRUPTION AND ILLEGAL MIGRATION

How essentially reduce level of corruption in the sphere of migration? What steps are necessary to make first of all? In this report authors try to respond to these questions. The main objects of this report are:

Formation of anti-corruption policy and creation the system of coordinated actions between institutions;
Improvement of anti-corruption control;
Enforcement of responsibility for corruption crimes;
Rising the role of local self-governance system and participation of civil society, Mass Media and Maslikhats in the oversight process over the carrying out of migration policy.

ASSESSMENT OF THE ACTIVITIES OF LAW ENFORCEMENT AND FISCAL AGENCIES, AND JUDICIARY SYSTEM OF THE REPUBLIC OF KAZAKHSTAN RELATED TO FIGHTING CORRUPTION

Evidently that corruption is somehow manifesting almost in every law enforcement and fiscal agency, and in the judiciary system of the Republic of Kazakhstan. In July to August 2002 the public fond "Transparency Kazakhstan" polled experts to obtain maximum objective appraisal of the activities of law enforcement and fiscal agencies, and the judiciary system of the Republic of Kazakhstan related to fighting torts of a corruption character.

Respondents' answers prove that corruption is most evident in those agencies that due to their status and authorities of their officers have to often interfere into operations, and restrict rights and lawful interests of both individuals and legal entities (departments of Interior Affairs, and the Road Police), and especially ones of  subjects of private business (the Customs and Tax Services, and the Fiscal Police), though they fail to feel any possible responsibility for their actions even if the latter are illegal.

The poll has proved that almost at all law enforcement and fiscal agencies, and in the judiciary system, representatives of the administrations (in courts – respective judges) of their local units (regional, city, district ones) are most vulnerable to corruption.  This fact is apparently explained by: a low level of control for activities of these departments by the central administrations of respective agencies; second, an improper level of the local population's legal consciousness, including their inadequate capability to defend their rights and lawful interests.

Assessment of the activities of law enforcement and fiscal agencies, and judiciary system of the republic of Kazakhstan related to fighting
corruption

ASSESSMENT OF THE NATIONAL INTEGRITY SYSTEM OF KAZAKHSTAN

The “Assessment of the National Integrity System of Kazakhstan” has been performed in the year 2002, in the course of which such components as state institutions, audit system, legislation, judicial system, possibility of conduction journalistic investigations and legal protection organizations, polices and Public Prosecutor Offices, civil societies, private sector and mass media, and access to information have been appraised, and the actual corruption level on their basis.

Assessment of the National Integrity System of Kazakhstan

ASSESSMENT OF TRANSPARENCY LEVEL OF BUDGET SYSTEM OF THE REPUBLIC OF KAZAKHSTAN

In February-March 2003 the Civic foundation “Transparency-Kazakhstan” with support of US Agency for International Development (USAID) conducted an expert survey in order to gain maximum impartial transparency level of the budgetary system of the Republic of Kazakhstan.

During this survey there were questioned 55 respondents, representing various spheres of activity, including republic’s parliament and maslikhat deputies, representatives of nongovernmental organizations, mass media, research and information-analytic institutions, government officials, businessmen, independent experts.

Assessment of transparency level of budget system of the republic of Kazakhstan

 

The aim of this project was to increase public awareness of corruption in Kazakhstan’s judicial system, to raise standards through research and analysis of both the country’s legal system and the informal practices that surround it, and to apply the experience of fighting corruption in other countries to Kazakhstan.

The general objectives of the project were:

• To determine the causes and level of corruption in the judicial system.

• To evaluate the roles of different officials in the judicial process.

• To develop concrete proposals for reform and deliver them to the administration.

• To develop mechanisms for fighting corruption, particularly those involving

the media and society at large.

• To dismantle the loopholes in existing legislation that encourage corruption.

• To apply international experience of fighting corruption to Kazakhstan.

• To produce and publish the report “Courts Without Corruption” (circulation 1,000 copies) containing the research results.

The judiciary in Kazakhstan suffers a serious corruption problem. At a meeting on the subject on April 19, 2000, the country’s president acknowledged this and said the application of justice had room for improvement. The courts make frequent mistakes; there have been instances of judges taking a lenient attitude towards powerful criminals and of the forgery of forensic evidence.

The decisions of regional courts are frequently overruled by the Supreme Court and by the General Office of the Public Prosecutor. The most widespread phenomenon is the use of red-tape to delay proceedings. Some senior judges simply do not merit such a high civic status, yet when their  esponsibility is questioned the judiciary tends to close ranks to defend those under scrutiny. The Supreme Court’s work to develop a unified and credible judicial practice leaves much to be desired.

The level of corruption in any state’s judiciary usually depends on the following factors:

1) Appointments to the judiciary.

2) Dismissal of judges.

3) Recruitment and career development.

4) Knowledge of current legislation by existing judges and the opportunity

for them to increase their professional standing.

5) Judicial independence and the influence on the decision-making process

by senior members of the judiciary, the executive branch and the Presidency.

6) Anti-corruption legislation.

7) The level of corruption in courts and the state at large.

8) The level of corruption in society as a whole.

Research on the causes of corruption extended to the following subjects:

• Relationships between the judiciary and the executive.

• Competence and qualifications of the judiciary.

• System of judicial appointments, promotion, pay and dismissal from office.

• Relationship between the courts and the prosecutor’s office.

• The role that lawyers play in the relationship between courts and clients.

• Procedural formalities and judicial responsibility for failing to adhere to proper judicial standards.

• Complaints from prosecutors, causes of miscarriages of justice, re-trials.

• Legislative failures in meeting the needs of the judiciary.

• Efficient execution of court judgements.

• Ways in which the existing system could be improved.

The project employed both quantitative and qualitative research. However, because the primary purpose was to determine the causes of corruption and to explore ways of reforming the existing system, the emphasis was on qualitative research. The research was an attempt to answer the questions ‘Why is there corruption in the Kazakh judiciary?’ and ‘What forms does the corruption take?’

1. Officials in the courts of justice (e.g. judges, bailiffs)

2. Government officials in the executive and legislative branches

3. Prosecutors

6. Journalists.

Because the topic was considered a highly sensitive one for judges, bailiffs, lawyers and prosecutors, an in-depth, anonymous individual interview was used. See sample interview questions in Appendix 1. This method not only allowed researchers to collect the necessary information, but also to involve interviewees in the analysis of the problem of corruption in the judiciary and the formulation of ways to fight it. The reliability of this information can be checked with the help of triangulation (i.e. verifying the information with three different sources).

The last three respondent categories (i.e. clients, lawyers and journalists) were surveyed using regular interviews. They were asked a series of questions about judicial efficiency, accessibility, integrity, responsibility and possible cases of corruption. The questionnaire was prepared in two languages with the help of advisers.

To guarantee the success of the project it was vital to ensure full co-operation with the authorities. TI Kazakhstan received approval from judicial authorities, the prosecutor’s office and the Ministry of Justice. This was essential to avoid hostility from judges and officials. Official approval for the research project also reflected the authorities’ commitment to its wider aims.

The project was conducted across six regions of Kazakhstan: the major cities as well as the North, West, South and East of the country. The majority of surveys took place in urban areas although some rural locations were also included.

There were around 20 in-depth interviews with judges, several with bailiffs, executives, and around 20 with prosecutors, lawyers and journalists.

The survey unveiled specific problems in each group as well as some qualitative and regional differences.

The scheme worked as follows: three specialists were dispatched for five days to a given region and met by a project co-ordinator who had already determined a sample group of respondents with links to the local judiciary. The interviewers

were trained and briefed while arrangements were made to meet with officials. Interviews were conducted over the following two to three days with the last two days reserved for the collection of questionnaires and a report on preliminary findings. During this time discussion groups with members of the sample group were conducted. The entire process took around three months, including two and a half months of fieldwork and a month at the end to prepare the final report.

The research produced a wealth of quantitative and qualitative information. It also promoted the active participation of all interested parties, including the judiciary itself and government officials responsible for reforming it.

To help refine the methodology and eliminate practical difficulties, a pilot research project was also conducted.

The most important achievements of the project were:

• Proposals to modernise existing legislation were drawn up based on the research. These were submitted to the Security Council, Ministry of Justice, Supreme Court and Parliament of Kazakhstan.

• The results helped develop proposals for practical changes in the administration and the judiciary designed to fight corruption, as well as the formulation of a code of conduct. These will be published in magazines and the mass media in order to promote discussion

• “Courts Without Corruption”, a summary digest of the research results, was published.

• Mechanisms were developed to improve the delivery of judicial services. The project also helped formulate new roles for other bodies to play in the fight against corruption including the non-governmental sector, business, state and international organisations.

• A series of round-table discussions on the results were held.

The purpose of these round-table discussions was to explore and develop mechanisms for curbing corruption in the courts through improved transparency and better judicial administration. The discussions revolved around the establishment of a more sophisticated recruitment system, increased judicial independence and responsibility, as well as a decrease in the number of miscarriages of justice. The round-tables aimed to bring together expertise from nternational

organisations, government bodies, businesses, NGOs and the mass media.

Specific topics for the round-table discussions included:

• The findings of the research project and TI Kazakhstan’s legislative initiatives on the eradication of judicial corruption.

• The role of the NGO sector in monitoring the judiciary and fighting corruption.

• International experience of fighting corruption in courts.

• The position of existing national and international legislation against corruption.

• The creation of conditions that allow courts to maintain their independence from the state.

• The role and influence of the mass media in fighting corruption; improving the access of journalists to information relevant to judicial corruption.

In our view it is crucial to continue monitoring the judicial system in order to assess the impact of future reforms. It is possible that new methods of assessment will be developed over time, including improved interaction with the state structures that are responsible for reforming the judiciary.

*Full text of the research is available only in Russian

Courts without corruption