Defense of the dissertation of Saktaganova Akmaral for the degree of Doctor of Philosophy (PhD) in the specialty «8D04201 - Jurisprudence»
L.N. Gumilyov Eurasian National University, a dissertation defense for the degree of Doctor of Philosophy (PhD) by Saktaganova Akmaral on the topic «Formation and strengthening of professional legal awareness of judges and employees of the judicial system (issues of theory and practice)» in the field of «8D04201 – Jurisprudence».
The dissertation is executed at the chair of «Constitutional and civil law» of the L.N. Gumilyov Eurasian National University.
The language of defense is kazakh
Reviewers:
Alibayeva Gulnar Aytchanovna - Doctor of Law, Professor, Vice-Rector for Research and Commercialization of Kunayev University (Almaty);
Zhanibekov Akynkozha Kalenovich - PhD, associate professor, deputy dean for educational, methodological and educational work of the Faculty of Law of the Kazakh National University named after Al-Farabi (Almaty).
Temporary members of the Dissertation Committee:
Zol Frederick Andrzej - Doctor of Law, Professor of Jagiellonian University (Krakow, Poland);
Zhatkanbaeva Aizhan Erzhanovna - Doctor of Law, Associate Professor, Judge of the Constitutional Court of the Republic of Kazakhstan (Astana);
Zhetpisov Serik Kozhanovich - Doctor of Law, associate professor, head of the department «Jurisprudence» Toraigyrov University (Pavlodar).
Mitskaya Yelena Vladimirovna - Doctor of Law, Professor of the Department of Criminal Law and Criminal Procedure of M. Auezov South Kazakhstan University (Shymkent).
Scientific consultants:
Abdrasulov Ermek Bayakhmetovich - Doctor of Law, Professor of Constitutional and Civil Law of L.N. Gumilev Eurasian National University (Astana)
Yuсel Ogurlu - Doctor of Law, Professor of Balikesir University (Istanbul, Turkey)
The defense will take place on February 21, 2024, at 02:00 PM in the Dissertation Council for the training direction «8D042 – Law» in the specialty «8D04201 – Jurisprudence» of L.N. Gumilyov Eurasian National University. The defense meeting is planned to be held online and offline (mixed) format.
Link: http://surl.li/plmyx
Address: 010008, Astana, 2 Satpayev str., №302 auditorium.
Abstract (English):
Relevance of the research topic. Formation and strengthening of legal consciousness of Kazakhstan society as a whole, as well as legal consciousness of individual professional groups are conditioned by the tasks and content of the transition of Kazakhstan society and the state to the Second Republic and New Kazakhstan, enshrined in the process of constitutional reform at the national referendum on June 5, 2022. As it is emphasized in the Message of the President of RK K.K. Tokayev to the people of Kazakhstan from June 6, 2022, «in the New, Fair Kazakhstan there should be no place for police arbitrariness, incompetent prosecutors and biased judges».
Under these conditions, the role of public and legal consciousness in the political and legal lexicon acquires special significance when it comes to the need for «fundamental changes in the self-consciousness of citizens, society, legislation», the transition to «a strong parliamentary culture, a new political culture, a culture of dialog and compromise».
A high level of legal consciousness in this context acts as a foundation and plays a leading role in the system of various manifestations and types of general culture, since the issues of ensuring legality, justice, law and order in the functioning of the state and society are closely related to the level of legal consciousness of society and its social groups. This is well stated in the Concept of Legal Policy of the Republic of Kazakhstan until 2030, where it is emphasized that «civic activity is a necessary condition for the existence of the rule of law, which, in turn, is conditioned by the level of legal culture of the individual and society». Legal consciousness is the main and integral component of legal culture.
Professional legal consciousness of judges and employees of the judicial system as an organic part of legal consciousness of society is a complex multifaceted phenomenon, the state of which largely determines the degree of maturity of the legal system of the state, since the level of judicial awareness of judges affects all the main spheres of legal life of society, moreover, the language and actions of judges and employees of the judicial system as civil servants are spoken by the state itself.
Indeed, the level of development of professional legal consciousness of judges and employees of the judicial system decisively determines the success of the realization of the rights and freedoms of citizens, the completeness of their legal protection, which positively affects, in turn, the process of formation of legal culture of society as a whole.
Realizing the importance of professional legal consciousness of judges and judicial system employees, the state is working hard to form and strengthen it on the basis of theoretical concepts developed by legal science.
At the same time, the legal nature of the category of professional legal consciousness of judges and employees of the judicial system has not yet been fully defined, the system of interrelations of this concept with the categories of legal culture and social consciousness has not been established in the new conditions, specific ways to counteract the deformation of legal consciousness of judges and employees of the judicial system, leading to a decrease in public confidence in the judicial system, offenses and corrupt practices have not been developed.
The issue of professional training of future judges and judicial workers, the concept and improvement of selection and appointment to judicial positions, issues of professional development of judges, strengthening their anti-corruption consciousness and other areas that directly or indirectly affect the level of legal consciousness of the professional groups under study need to be comprehended and thoroughly analyzed.
All of the above indicates the need to study the general and specific problems of formation and strengthening of professional legal consciousness of judges and employees of the judicial system in the new conditions, a comprehensive analysis of the qualitative features of its most important components: legal psychology, legal ideology, legal education, legal ethics, self-perfecting and self-education.
Thus, the relevance and timeliness of the topic we have chosen is conditioned by the need for scientific research of ways to improve the professional legal consciousness of judges and employees of the judicial system, the formation of a high level of which is of great importance for the protection of human and civil rights and freedoms, the rule of law, which cannot be guaranteed without truly independent, competent, highly intelligent, highly moral judges and employees of the judicial system.
Purpose and objectives of the dissertation research.
The purpose of the dissertation research is a comprehensive study and analysis of theoretical and practical problems of formation and strengthening of professional legal consciousness of judges and employees of the judicial system in the conditions of building a New and Fair Kazakhstan. To achieve this goal, the following tasks were set in the dissertation:
- To analyze theoretical aspects of the problem of legal consciousness, its concept, structural components, functions;
- to investigate legal consciousness as a factor of legal progress and sustainable social development of the Republic of Kazakhstan in the conditions of modernization of public consciousness;
- to establish the essence of professional legal consciousness in the system of individual and collective legal consciousness;
- to determine the category of judges and employees of the judicial system as specialized socio-professional groups;
- to establish the concept, essence and content of professional legal consciousness of judges and judicial workers;
- to analyze the professional training of judges and judicial officers in the Republic of Kazakhstan and the experience of foreign countries;
- to reveal the interrelation and mutual influence of professional legal consciousness and professional behavior of judges and employees of the judicial system;
- to consider the causes and content of professional deformation of legal consciousness of judges and judicial system employees and its prevention;
- to show ways to improve the professional legal consciousness of judges and judicial system employees.
Research methods. The methodological basis of the dissertation research was formed by general scientific and special-legal methods of research: dialectical method of cognition, concrete-sociological method of research, methods of formal and dialectical logic, inductive and deductive forms of inference, historical-legal, comparative-legal, formal-legal and other ways of cognition of legal reality.
The main provisions (proven scientific hypotheses and other conclusions that are new knowledge) put forward for defense:
- it is argued that the concept of legal consciousness initially began to emerge through the integration of such terms as legal knowledge, legal awareness, confidence in the law, opinion about the law, etc. and focused not only on the positions of legal experts, legal scholars, legal practitioners, but also on opinions about law and law inherent in the population as a whole. The experience of the individual and his reaction to the whole system of legal phenomena became the basis of theoretical concepts about legal consciousness. In this regard, based on the modern understanding of the essence and content of legal consciousness, author's definition is proposed: Legal consciousness is a form of social consciousness associated with legal phenomena, the integral sphere of law and ideas about the proper law, which is expressed in a variety of actions of individuals and its societies of lawful and unlawful character, as a result of which the lawfulness is constructed through overcoming objective social contradictions.
2 It is substantiated that the study of not only legal consciousness, but also the entire legal sphere in modern conditions should be aimed primarily at understanding the everyday experience of people and their perception of the law in everyday life. This is due to the fact that in the center of attention of legal researchers should be, first of all, a person, his conscious and subconscious perception of legal phenomena, and only in this system the sphere of formal law and its structural components should be studied.
Highlighting formal-legal phenomena in the center of the methodology of legal research closes the totality of subjective perception of law, which leads to systemic errors in legal regulation, endless amendments and additions to the legislation and violation of the stability of the mechanism of legal regulation. In this regard, it is necessary to mix the emphasis in the study of formal-legal phenomena on the understanding of law as a general-social phenomenon, in which a significant place is given to legal consciousness.
- It is established that legal consciousness as a factor of legal progress and sustainable social development of the Republic of Kazakhstan is expressed in the fact that public and individual consciousness should be at a level where it rejects arbitrariness, corruption, lawlessness, tribalism and other negative phenomena in society. The formation of a high level of legal consciousness is facilitated by the presence of sustainable social peace, the achievement of civil harmony, the growth of well-being of ordinary citizens, informal protection of human rights and freedoms.
At the same time, taking into account the reverse influence of social consciousness on the material foundations of people's lives, it is substantiated that the active position of each subject of legal relations, modernization of his legal consciousness through upbringing, self-education, education and self-education, legal universal education and advanced training will contribute to legal progress and sustainable socio-economic development of the Republic of Kazakhstan.
- It is argued that the concept of professional legal consciousness is closely related to the category of professional self-awareness. It should be considered as a person's awareness of the fact that he belongs to a group of people united by one profession, awareness of the need to possess the necessary knowledge, skills and abilities, i.e. professional self-consciousness focuses its attention on the awareness of specific qualities necessary in the implementation of a particular professional activity.
Professional consciousness, considered in context with legal phenomena and in general with the sphere of law, is a professional legal consciousness. Compared to the ordinary legal consciousness, professional legal consciousness is characterized by a deeper analysis, a tendency to formalize all legal processes, the desire to rely on legal sources, often there is a reliance on scientific doctrines. In comparison with scientific legal consciousness, professional legal consciousness is formed not on the basis of the study of legal theories and concepts, but on the basis of legal practice, law enforcement activity. Professional legal consciousness is based on the knowledge obtained in specialized higher and specialized secondary educational institutions, as well as in the process of professional activity.
In this context, the paradoxical phenomenon of the formation and activity of judges-biyes in Kazakh nomadic society as a professional group, which in Kazakh medieval and new history occupied a unique place, is shown.
- It is argued that a number of factors are involved in the formation of a professional group of judges: the presence of a system of normative legal acts regulating the activities of judges; the possibility of regulating their activities by other social regulators (norms of judicial ethics, general norms of morality, etc.); the functioning of associations and unions of judges; as a specialized socio-professional group, judges should have guarantees of their independence; the presence of characteristic common features inherent in an isolated, specific society.
It is substantiated that the importance and role of the judiciary employees, as a professional group, is difficult to overestimate, since all preparatory work preceding the trial itself is carried out by the employees of the apparatus. In addition, further work on the execution of judicial acts is also entrusted to this category of workers, which bears considerable responsibility for the work of the judicial system together with the judiciary.
- It has been established that the professional legal consciousness of judges is part of the broader concept of legal consciousness of lawyers. The general standards of legal consciousness of lawyers are adapted to more specific situations related to the professional activities of a judge. The role of the professional legal consciousness of judges is to contrast a high level of moral and ethical qualities with behavior that may be termed unethical or immoral. There is a societal belief that judges should be held to a higher standard than other legal professions.
It has been established that the legal consciousness of judges is inextricably linked with the concept of application of law as a special form of its realization. The result of law enforcement activity is the adoption of a judicial act (decision, verdict, judgment, ruling, determination) on a particular case. Judicial act in this case acts as a result of intellectual and thinking activity, i.e. the entire legal consciousness. It concentrates the judge's knowledge, his assessment of factual circumstances, their application to the current legal regulations, and his moral qualities.
- The author's definition of the concept of professional legal awareness of judges is developed and the process of its formation is shown: «Professional legal consciousness of judges is one of the forms of individual and collective legal consciousness, mediated by a system of legal knowledge of specialized nature, a set of legal beliefs, knowledge, stereotypes, values and traditions that are formed in the judicial system, united by the tasks and goals of judicial activity and justice».
- It is determined that the content of professional legal consciousness is inherent for the judicial system employees, which reflects their work in the judicial system. It is close in its content to the professional legal consciousness of judges. This statement follows from the fact that many members of the judiciary are involved in one way or another in the process of performing procedural functions.
- It is argued that the system of selection and appointment of judges and employees of the judiciary significantly affects the formation and strengthening of a high level of their professional legal consciousness. This is due to the fact that the quality forms and methods of legal education, its provision with patronage from the judicial system, improving the level of training of judges in a specialized educational institution predetermine the effectiveness of the judicial system in the administration of justice. Therefore, there is an urgent need to fundamentally revise the procedure for training legal personnel in higher education institutions of the republic, the system of selection and appointment of judges, as well as employees of the judicial system, as it is necessary to ensure the rule of law and accessibility of justice, as well as guarantees of protection of rights, freedoms and legitimate interests of individuals and legal entities.
- It is substantiated that the role of professional legal consciousness in strengthening and developing professional behavior can hardly be overestimated. Obvious professional duties, accepted as prescribed standards of behavior, can not always be realized in the concepts of duty, necessity and proper behavior. In many respects, such imperatives are determined by the level of professional legal consciousness of the judge and judicial employee, the formation of positive legal thinking. Elements of negative, criminal legal consciousness, which determine the behavior of a judge, may lead to the transfer of imperative requirements into the category of conditional, non-binding, which may depend on circumstances and subjective approaches.
- The author's argumentation on the issue of professional deformation of legal consciousness of judges and employees of the judicial system and its prevention is expressed. It is substantiated that the improvement of professional legal consciousness of judges and employees of the judicial system is a system of measures to prevent and overcome the deformation of professional legal consciousness, as well as a system of possible and permissible forms, means and methods of comprehensive work to improve professional legal consciousness on the example of such a specialized socio-professional group as judges and employees of the judicial system.
Description of the main results of the research.
The manuscript of the dissertation was discussed at the meeting of the Department of Constitutional and Civil Law of L.N. Gumilyov Eurasian National University. The main provisions of the dissertation research have been published in scientific journals submitted by the Committee for Quality Assurance in the Field of Science and Higher Education of the Ministry of Science and Higher Education of the Republic of Kazakhstan, in the journal included in the Scopus database, in scientific conferences.
The main theoretical ideas, conclusions and practical recommendations of the thesis, constituting the content of the work, are presented in 10 (ten) scientific articles, of which - 4 (four) articles - in the proceedings of international conferences, 1 (one) article in a scientific journal of Germany, 4 (four) articles - in journals recommended by the Committee for Quality Assurance in Science and Higher Education of the Ministry of Science and Higher Education of the Republic of Kazakhstan, 1 article - in a journal indexed in the Scopus database.
Justification of novelty and importance of the obtained results. The novelty of the dissertation research lies in the fact that the issues concerning the formation and strengthening of legal consciousness in society for the first time at the dissertation level are considered in connection with the activities of special professional groups - judges and employees of the judicial system. In this aspect, the peculiarity of the work is expressed in the application of a comprehensive approach and consideration of legal issues in the field under study in the relationship of professional legal consciousness of judges and judicial system employees with other legal categories and phenomena: legal culture and legal education; selection and appointment to judicial positions and positions of civil servants; professional development and additional education, activities of judicial community bodies and compliance with the norms of judicial ethics; deformation of the legal consciousness of judges and judicial system employees.
The novelty of the research is conditioned by the introduction of amendments and additions to the Constitution of the RK, the country's entry into the period of building a New Kazakhstan, in which the protection of human and civil rights and freedoms will be more effectively ensured with the establishment of the Constitutional Court, and the role and responsibility of the judiciary will be increased, since the last word in disputes about the law remains with the judiciary. Ensuring fair and lawful judicial decision in such conditions is possible only if there is a high level of professional legal consciousness of judges and employees of the judicial system.
On the basis of in-depth analysis of many aspects of this problem, theoretical recommendations and specific proposals for the formation and strengthening of professional legal consciousness of judges and employees of the judicial system are formulated:
- The beginning of the formation of professional legal consciousness of judges begins during the period of higher legal education, where there should be a serious influence of the judicial community on the curriculum and the model of behavior of future judges. In this regard, it is necessary to establish, based on the experience of the FRG, that the functions of the basic state educational standard of higher legal education are determined by the Constitutional Law of the RK «On the judicial system and the status of judges». For this purpose it is necessary to add the following phrase to paragraph 2) of item 1 of Article 29 of the Constitutional Law: «The Supreme Court of the RK together with the Supreme Judicial Council of the RK and the Ministry of Science and Higher Education of the RK determines the basics of the legal education trajectory: subjects and duration of studies, conditions of industrial and other practice in courts and measures to control academic performance».
- Taking into account that a judicial act acts as a result of intellectual and thinking activity, i.e. the whole legal consciousness, which concentrates the judge's knowledge, his assessment of actual circumstances, their application to the current legal regulations, his moral qualities, it is necessary to establish a mandatory condition for the completion of legal education the passing of the state written examination for the drafting of a judgment in a civil case and a sentence in a criminal case, fixing such a requirement in the state compulsory legal education.
- Taking into account that judges are often attacked by the general public, mass media, individual subjects, which lead to a high level of stress of judges, increasing among them diseases of neuropsychological nature, it should be made mandatory for judges to undergo psychological rehabilitation, fixing this requirement in the «Regulations on the judicial administration of the RK». In this regard, in paragraph 14 of the Regulation, the words «development of norms of judges' workload» should be supplemented with the phrase: «organization and provision of psychological rehabilitation of judges».
- Professional legal consciousness of judges shall be further developed in the system of professional development of judges, which should not limit the autonomy and independence of judges, but, on the contrary, promote comprehensive broad thinking, broadening of outlook and various knowledge of acting judges.
In this aspect, we believe that it is necessary, based on the experience of the OECD countries, to make advanced training of judges not an obligation, but a guaranteed right, on the basis of which judges themselves choose the trajectory of their training, for the completion of which no grades should be given. The experience of developed countries shows that the provision of such conditions ensures the willingness of all judges, without exception, to take at least 5 days of refresher courses each year. In addition, there should be no division of refresher courses depending on the particular court. In the Federal Republic of Germany, for example, judges of the first, second instance and the Supreme Court take refresher courses together if they choose the same training path.
These provisions should be enshrined in paragraph 1 of Article 31-1 of the Constitutional Law of the Republic of Kazakhstan «On the Judicial System and the Status of Judges», adding to paragraph 2 of paragraph 1 the following words: «A judge has the guaranteed right to attend a free advanced training course for judges on the training path chosen by him/her for at least 5 working days per year».
- Taking into account the frequent cases of deformation of professional legal consciousness of judges and employees of the judicial system, it is proposed to study anomalies in this area in more detail from the position of conceptual foundations of illegal behavior and to develop a special course «Causes of deformation of professional legal consciousness in legal activity».
Correspondence to the directions of science development or state programs.
Theoretical and practical significance of the dissertation research is expressed in conducting a multidimensional and systematic study on the ways of formation and strengthening of legal consciousness of judges and employees of the judicial system, which is aimed at solving one of the important problems of legal science, which has both theoretical and applied significance. The conclusions and recommendations set forth in the dissertation give an idea of the problematic issues of the category of legal consciousness in its interrelation with other legal concepts and categories, the effectiveness of effective measures for the selection and appointment of judicial personnel, the need for further reforms in the sphere of judicial power, leading to an increase in legal culture and legal consciousness of the professional groups under consideration.
The practical significance of the research is characterized by the fact that the proposed recommendations can be used in law-making, law-enforcement activities, as well as in scientific and pedagogical activities in the framework of teaching the disciplines «Theory of State and Law», «Constitutional Law», «Courts and Justice», «Legal Consciousness of Judges», «Judicial Lawmaking» and other elective courses in higher and postgraduate education.
Description of the co-researcher's contribution to the preparation of each publication.
Publications of the doctoral student are independent and complete research on the actual topic. Scientific results of the research are reflected in the publications of the co-researcher. The scientific articles present exhaustive scientific and practical recommendations on the formation and strengthening of professional legal consciousness of judges and employees of the judicial system in the structure of legal consciousness of the whole society.
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