Approximately one year after it was passed by Parliament, Kazakhstan’s Administrative Procedures Code will come into effect on 1 July 2021. For the first time, the country’s general administrative law will be regulated in a comprehensive legal document. Although the subject may sound rather dry, this is a milestone that reflects well on any country’s development as a state under the rule of law.
Administrative law regulates the rights (and duties) of citizens in relation to the state and is therefore mainly concerned with the state’s exercise of power. It sets limits on state action and provides citizens with mechanisms by which to protect and represent their interests. Administrative law has therefore often been described as codified, regulatory constitutional law. It is mainly concerned with giving substance to the human and basic rights. The state subjects its actions (or lack thereof!) to judicial scrutiny and enables its citizens to assert their rights vis-à-vis the state.
What is remarkable about Kazakhstan’s new Administrative Procedures Code is that firstly, it collates and codifies the existing dispersed rules on administrative procedure and, secondly, puts into effect a set of rules for judicial proceedings in the administrative courts. This creates a unified body of procedural rules for the authorities and the courts from one source. In drafting the Code, Kazakhstan’s legislature was largely guided by a model draft of an administrative procedures code for Central Asia which was produced under the guidance of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH.
Administrative procedure: codified rule of law
In Chapter II, the new Administrative Procedures Code sets out the key principles governing administrative procedures, including in the courts. It incorporates key elements of the rule-of-law principles enshrined in the country’s constitution, which are regulated for the first time in ordinary legislation, i.e. below the level of constitutional law. Under the heading “Protection of rights, freedoms and legal interests”, Article 9 describes a number of procedural rights in detail. It establishes a guarantee of legal protection by granting every person (kazhdyi) the right to apply to the authorities or the courts in the event of their rights being violated. Further paragraphs reinforce the guarantee of legal protection by prohibiting the denial of the right to file an application or make a complaint; they also prohibit the applying of pressure on any person to renounce these rights, with penalties for violations. That’s surely something that should be taken for granted, one might assume, but in light of the post-Soviet tradition of the authorities dispensing with inconvenient matters by simply refusing to accept the application or complaint in question, this clarification does not seem out of place.
Article 9, paragraph 4 codifies the right to a legally competent judge by prohibiting any deviation from the legally stipulated jurisdiction. A further important procedural right is set forth in Article 22 and concerns administrative proceedings. According to this provision, parties have the right to be heard prior to any decision by an administrative court. The right to a hearing reflects a principle of objective law and is deemed equivalent to constitutional law. The legal hearing should not be regarded solely as a party’s right, but as a duty on the part of the authorities, and hence as a procedural step that safeguards compliance with minimum rule-of-law standards. The individual should not be merely the object of the administrative decision but should have a say ahead of any decision that will affect his or her rights. He or she should, as a subject, be able to influence the proceedings and their outcome. The right to a fair hearing is thus a key indicator of rule-of-law development.
Another rule-of-law principle is proportionality. This principle states that any action by the state which interferes with the rights of the individual is justified only if it has a legitimate purpose and the measure is adequate, necessary and proportionate in a narrower sense (appropriate). This definition, drafted by Germany’s Federal Constitutional Court as the test to be applied to action by the state, has now been incorporated into Kazakhstan’s Administrative Procedures Code, along with explanations of its individual elements: adequate, necessary and appropriate.
These examples illustrate to what extent the new Administrative Procedures Code provides impetus for compliance with the rule of law in the actions of Kazakhstan’s executive. It fleshes out the constitutional norms – which have hitherto remained rather abstract due to the country’s weak tradition of constitutional jurisprudence – in ordinary law, and integrates them into action by the public authorities.
Judicial procedure: the cornerstone of the rule of law
With regard to legal protection via the administrative courts, a three-tier judicial system is envisaged, with the opportunity to appeal against first-instance decisions and, ultimately, the possibility of review via appeal to the Supreme Court of the Republic of Kazakhstan. Legal protection should be administered by specialised judges or by chambers of specialised judges set up in the framework of ordinary jurisdiction. There are plans to establish independent specialised administrative courts of first instance in future.
The types of action that may be brought are transparent and clearly regulated. A system of summary legal protection (i.e. provisional court relief) has been established. An unusual feature from a German perspective, but common in the successor states of the Soviet Union, are the short, legally stipulated deadlines for decisions by the courts. Taken together, citizens now have a comprehensive and effective system of legal protection available to them.
Two further aspects should be mentioned in particular:
Firstly, the new Administrative Procedures Code stipulates clearly and in detail that the court, without relinquishing its neutrality, has a particular obligation towards citizens, who are generally the weaker party in proceedings. As part of the principle of judicial investigation, the court must collect evidence and other materials for full and unbiased consideration of the matter and may not confine itself solely to the perusal of the authorities’ files. In the judicial dialogue during the oral hearing, citizens must be supported in such a way that reasonable applications can be filed.
Secondly, the option of judicial mediation is expressly regulated and is welcomed by the legislature as a mechanism for dispute resolution.
Law in the books – law in action
The law’s entry into force was scheduled for 1 July 2021 – an unusually long period of one year after its adoption. This was intended to give the institutions concerned sufficient time to prepare for the new legal situation.
The judiciary – like the executive of the Republic of Kazakhstan – has made considerable efforts in recent months to prepare the judiciary and the public authorities for the new rules. Among other things, with support from the German Foundation for International Legal Cooperation (IRZ), numerous training events were held for judges and officials in which the application of the new rules was discussed in detail, often with reference to examples from German administrative law.
Evaluating laws and assigning attributes such as “good”, “effective” or “inadequate” is difficult. In the present case, however, there is every reason to describe the Code as a “modern” law in that it builds on numerous countries’ experience in matters relating to administrative procedure. As a result, the Code rigorously embodies key rule-of-law requirements: it strengthens the rights of the citizen as a legal subject vis-à-vis the state and its institutions, and provides comprehensive legal protection through the administrative courts, including the possibility of obtaining provisional court relief.
Legal sociology’s traditional scepticism towards law in the books should be taken seriously, particularly when a completely new body of law is created and has yet to prove its worth. If law in action largely accords with the written provisions, however, the very positive overall impression of the new Administrative Procedures Code will have been confirmed.
The first rulings by the administrative courts are awaited with great excitement. Will the courts perform their critical role vis-à-vis the state? Will the authorities take account of the new judicial rules in their procedures? And how will judicial decisions be implemented or, indeed, enforced, if there is no voluntary compliance?
Dr Christian Reitemeier is a Senior Principal in the Ministry of Justice of North Rhine-Westphalia. Dr Christian Schaich is the Managing Director of the Centre for East European and International Studies. The authors participated as experts in the consultations organised by the IRZ.