In order to enhance the transparency and efficiency of judicial practice, domestic independent legal experts joined forces for the first time this year and launched the project “Legal Science in the Service of Justice". The contribution of legal science to improving judicial practice is undoubtedly significant. However, due to heavy workloads, courts sometimes lack either the time or the opportunity to consult scholarly research when making decisions. Yet the assistance of legal scholars can help judges understand legal theories and pave the way for legitimate and fair rulings.
With this purpose in mind, leading legal scholars and practitioners of our country united and created the ZanSar Institute for Expert Legal Research. One of the Institute’s key initiatives is the project "Legal Science in the Service of Justice". Within the framework of this project scientific and practical expertise, explanations and research on the most pressing and complex legal issues is being prepared. The main objective of the project is to contribute to the formation of a scientifically sound and consistent court practice in the country. This work is carried out in accordance with the recommendations of the International Council of the Supreme Court.
Recently, the first legal expert opinion prepared by Elena Nesterova, an expert of the Institute, Candidate of Legal Sciences, Associate Professor of the Higher School of Law "Adilet" of the Caspian University, was published. The specially created expert council reviewed and approved her opinion on a highly relevant subject. It analyses court cases on the compensation of lost profit of entrepreneurs illegally deprived of the opportunity to participate in public procurement. In court practice, even if the rights of a bona fide entrepreneur unjustly excluded from participation in a tender are subsequently restored, he cannot participate in procurement again. In such cases, the state is obliged to compensate him for lost profits. However, courts often refuse to satisfy the claim, considering that the receipt of future profits is not proven. This contradicts the compensatory nature of civil liability, especially in relations between private entrepreneurs and the public (quasi-public) sector. For example, while the state has access to an array of legal tools to protect its interests, an entrepreneur – even if they prove a legal violation – often finds it extremely difficult to restore their rights through the courts.
It is encouraging that, to prevent such inequalities and respond systematically to these issues, the expert opinions of the ZanSar Institute are prepared by highly qualified specialists with excellent expertise in their fields. Each expert opinion undergoes discussion and approval by a specially formed expert council. The Institute’s structure and its procedures for selecting experts ensure the conditions for high-quality work. The professional activities of these experts are guided by ethical standards such as independence, impartiality, and avoidance of conflicts of interest.
In this regard, Aigoul Kenjebayeva, the founder of the Institute, PhD in Law, notes:
"Justice plays an important role in maintaining law and order in society. The Institute’s expert opinions will help judges to make scientifically sound decisions on complex legal issues, ease their workload, and save time in analysing such cases. In addition, expert opinions serve as a tool for public oversight of the quality of justice, thereby strengthening citizens' trust in the judicial system".
The Institute plans to issue further expert opinions on important legal topics. Research subjects and opinions are carefully selected to contribute to the development of scientifically based judicial practice.
In addition, the ZanSar Institute is actively involved in the scientific interpretation of legislation. Experts of the Institute appear in courts of Kazakhstan and foreign countries, as well as in international arbitrations as legal experts. Issues related to the international aspects of this activity were discussed at a round table on 12 June this year. At the same time, citizens should also have the opportunity to receive the most fair decisions based on scientific principles of law. Therefore, the judiciary should be interested in making greater use of the opinions of legal scholars in specific disputes. Discussions are currently underway regarding the participation of legal scholars as specialists in court proceedings across the country.
"Criticism of the judiciary is largely valid and fair. The system itself is constantly looking for ways to solve these problems. But this is not easy. The number of court cases is growing every year, and increasing the number of judges is an expensive decision for the state. Even if judges work with full dedication, they do not always have enough time to deal with each case at the appropriate level. Moreover, given the problems such as corruption, incompetence and negligence that are still found in the system, it is difficult to expect dramatic positive changes. As one way to improve the situation, we propose to use the potential of legal experts, which has not yet been fully realised. The Institute brings together leading lawyers, legal scholars and academics with a good reputation, and their numbers is growing. "All of these legal experts will appear in the courts as legal specialists to help the judiciary, fair justice and therefore the whole of society. This will help judges to correctly understand complex legal issues", Kenjebayeva said.
Elena Nesterova, PhD in Law, emphasised legal science and court practice remain unconnected.
"There are various scientific schools in the country, lawyers conduct scientific and applied research, court practice is studied, legal norms are explained, critical reviews on court decisions are written, proposals are made to improve court practice. However, today legal science and court practice remain unconnected. Judges rarely refer to legal doctrine, even the opinions of the most authoritative scholars are often not considered in court decisions, and sometimes judges may simply be unaware of them. This, of course, negatively affects the quality of judicial acts. I am deeply convinced that judicial acts need scientifically substantiated, open and objective criticism, and in the future judicial bodies will take into account such opinions, especially when considering similar cases in order to ensure a fair trial in similar cases", - said E. Nesterova.
In turn, Askar Kaldybayev, Associate Professor of the Higher School of Law "Adilet" of the Caspian University, notes that currently most of the disputes considered in courts are complex and require deep knowledge.
"Due to heavy workloads, judges often lack time to study theoretical issues in depth. Yet a thorough understanding of these issues is crucial for making reasoned and fair judgments. Unfortunately, the texts of laws are often written vaguely, which allows for different interpretations. In addition, some laws may have lost their relevance or even become obsolete. Therefore, a correct interpretation of laws is essential. Legal scholars have been dealing with specific theoretical issues for many years, they are well aware of different points of view, ways of solution. They are well versed not only in the development of the issue within the framework of the legislation of Kazakhstan, but also in the legislation and law enforcement practice of developed countries. Therefore, legal scholars can suggest how to properly resolve disputes of a certain category from a theoretical point of view. It would be useful for courts to establish strong links with academics because they are not interested in the outcome of a dispute and can offer their impartial point of view. Scholars can prepare expert opinions for judges on specific issues that arise in practice. The most important thing is that these opinions should be taken into account by judges, first of all by the Supreme Court, then the quality of fair judgements will increase. "It is also suggested that the laws should explicitly provide for the courts to take into account scientific opinions. Thus, the interaction of courts and legal scholars will provide judges with theoretical support in resolving specific cases, and scientists - the opportunity to obtain experimental material for future scientific research", - said A. Kaldybayev.
In addition, the findings of legal scholars and experts can be aimed at improving legal regulation by adopting new laws or improving existing ones. In this respect, it is equally important for legal scholars to maintain close cooperation with the Ministry of Justice, which is responsible for drafting legislation.