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Kazakhstan and Venice Commission: for Democracy Through Law KAZAKHSTAN AND VENICE COMMISSION: FOR DEMOCRACY THROUGH LAW Under the editorship of Kairat Mami and Igor Rogov Almaty, 2019 UDC 327(574) LBC 66.4(5каз.) К 14 Under the editorship of Kairat Mami and Igor Rogov Editorial board: Bakyt Nurmukhanov, Aigul Mukusheva К 14 Kazakhstan and Venice Commission: for Democracy through Law / under the editorship of Kairat Mami and Igor Rogov. – Almaty: Kazakh University, 2019. – 565 + 7 с. ill. ISBN 978-601-04-4340-2 This book is the first edition, which summarizes the results of more than twenty years of cooperation between Kazakhstan and the Venice Commission. It includes all opinions of the Venice Commission adopted at the request of the Republic of Kazakhstan, as well as some studies and reports relating to the most important legal institutions. Well-known domestic lawyers and foreign experts involved as speakers share their ideas and views on topical issues of legal development. The annexes include the statutes and other documents forming the legal basis for the activities of this consultative body of the Council of Europe. The book will provide an integrated view of the evolution of relations between the state bodies of the Republic of Kazakhstan and the Venice Commission, its activities, the existing international (european) standards in the field of democracy, the rule of law and the protection of human rights and freedoms. Thus, it will contribute to improve the quality of law-making and law enforcement activities, and in general – to ensure the compliance of national legislation with the Constitution and generally recognized principles and norms of international law. Documents and other information obtained from the official internet resource of the Venice Commission as it was on September 30, 2019 and published unchanged. UDC 327(574) LBC 66.4(5каз.) © Constitutional Council ISBN 978-601-04-4340-2 of the Republic of Kazakhstan, 2019 Сontent Gianni BUQUICCHIO .......................................................................................................... 5 Kairat MAMI ........................................................................................................................ 7 Igor ROGOV ......................................................................................................................... 10 Unzila SHAPAK ................................................................................................................... 14 Bakyt NURMUKHANOV .................................................................................................... 17 Veronika BILKOVA ............................................................................................................. 20 Talyia KHABRIEVA ............................................................................................................ 24 Claire BAZY-MALAURIE, Grigory DIKOV ...................................................................... 35 George PAPUASHVILI ........................................................................................................ 42 Philip DIMITROV ............................................................................................................... 47 Slavica BANIĆ ..................................................................................................................... 51 Opinions of the Venice Commission on the legislation of the Republic of Kazakhstan ........................................................................................... 55 Opinion on the possible reform of the ombudsman institution in Kazakhstan .................... 55 Amicus curiae brief on the interpretation of the Constitution of the Republic of Kazakhstan concerning the participation in the Customs Union within the Euro-Asian economic community ............................................................................................................ 63 Joint opinion on the Constitutional law on the judicial system and status of judges of Kazakhstan ............................................................................................................................ 70 Opinion on the draft Code of the judicial ethic .................................................................... 89 Opinion on the draft Law of the Republic of Kazakhstan on Administrative procedures .... 106 Opinion on the amendments to the Constitution of the Republic of Kazakhstan ................. 115 Opinion on the draft Administrative procedure and justice code ........................................ 123 Opinion on the Concept paper on the reform of the High Judicial Council ........................ 141 Studies and Reports of the Venice Commission on selected topics ................................ 161 Code of Good Practice in Electoral Matters ........................................................................ 161 3 Referendums in Europe – an analysis of the legal rules in the European States .................. 190 Report on the participation of political parties in elections .................................................. 229 Comparative Report on thresholds and other features of electoral systems which bar parties from access to Parliament .................................................................................................... 240 Report on the Rule of Law .................................................................................................... 252 Report on the misuse of administrative resources during electoral processes ..................... 267 Compilation of Venice Commission opinions and reports concerning courts and judges ... 305 Rule of Law Checklist .......................................................................................................... 407 Compilation of the Venice Commission opinions and reports concerning prosecutors ....... 455 Report on the independence of the judicial system: Part I: The independence of judges ..... .534 Legal basis for cooperation ................................................................................................ 551 Decree of the President of the Republic of Kazakhstan № 283 of March 13, 2012 «On membership of the Republic of Kazakhstan in the European Commission for Democracy through Law» ............................................................................................... 551 Decree of the President of the Republic of Kazakhstan № 221 of March 28, 2016 «On membership of the Republic of Kazakhstan in the European Commission for Democracy through Law» ............................................................................................... 552 Statute of the European Commission for Democracy through Law ..................................... 553 Rules of Procedure of the Venice Commission ..................................................................... 557 Annexes ............................................................................................................................... 563 List of states-members of the Venice Commission ............................................................... 563 Photos .................................................................................................................................... 565 4 Dr. Gianni BUQUICCHIO, President of the Venice Commission he Venice Commission has been co-operating with Kazakhstan for more than 20 years. Kazakhstan held observer status from 1998 and in 2012 joined Tthe Commission as a full member. This accession confirmed the wish of the authorities of Kazakhstan to actively co-operate with the Commission on constitutional and other legal reforms. Today we can say that through this partnership we were able not only to constructively work with each other but also to establish friendship, trust and mutual understanding. Over the past thirty years Kazakhstan has made considerable progress in modernising its legislation based on international standards and best practices of European countries. This progress was made in close co-operation with several international organisations, including the Venice Commission. I believe that the potential of this partnership is far from being exhausted and that institutions such as the Venice Commission could continue to help the country on its path of reforms aimed at the democratisation of Kazakhstan and its institutions. It is true that our visions of the implementation of the above-mentioned standards is not always the same; however, ultimately our on-going dialogue will certainly contribute to bringing the constitutional and legal framework of Kazakhstan as close as possible to European standards. Since 2007 when we were requested to prepare our first opinion on the legislation on the Ombudsman, the Venice Commission has been invited to provide opinions on several pieces of legislation. This first interaction was followed in 2009 by a request from the Constitutional Council to receive advice on the issue of the legal force of acts of the customs union between Belarus, the Russian Federation and Kazakhstan. In 2011 in co-operation with the OSCE/ODIHR, the Commission provided an opinion on the constitutional law on the judiciary and the status of judges in the Republic of Kazakhstan and in 2016 an opinion was prepared on the Code of judicial ethics. In February 2017 the authorities of Kazakhstan requested the Venice Commission to prepare an opinion on the amendments to the Constitution of Kazakhstan. This was a major, qualitative development in our relations. 5 Kazakhstan and Venice Commission: for Democracy through Law
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