Principles of civil proceedings

Civil Procedural law of the Republic of Kazakhstan

Civil procedure legislation of the Republic of Kazakhstan regulates public relations arising in the process of administration of justice by courts in the course of consideration and adjudication of claims and other cases assigned to their competence by the Civil Procedure Code of the Republic of Kazakhstan dated July 13, 1999 and other laws.

The order of legal proceedings on civil cases in the Republic of Kazakhstan is determined by Constitutional Laws, Civil Procedure Code of the Republic of Kazakhstan based on the Constitution of the Republic of Kazakhstan and generally recognized principles and norms of International Law. Provisions of other laws regulating civil proceedings shall be included in the Civil Procedure Code.

International contractual and other obligations of the Republic of Kazakhstan, as well as regulatory resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan are integral part of the civil procedure law.

Legislation on civil proceedings establishes the order of legal proceedings on disputes arising from civil, marital, employment, housing, administrative, financial, economic, land relationships, relations on use of natural resources and environmental protection and other legal relations, as well as special proceeding cases.

Objectives of civil proceedings are a protection of violated or disputed rights, liberties and legally protected interests of citizens, the state and organizations, a strengthening of the rule of law and a prevention of offenses.

Legality. The court in resolving cases in the course of civil proceedings must strictly observe requirements of the Constitution of the Republic of Kazakhstan, the present Code and other regulatory legal acts.

The courts shall not be entitled to apply laws and other regulatory legal acts infringing on human and civil rights and liberties enshrined in the Constitution. If the court finds that a law or other regulatory legal act subject to application infringes on human and civil rights and liberties enshrined in the Constitution, the court shall suspend the legal proceedings on the case and apply to the Constitutional Council of the Republic of Kazakhstan with a submission to acknowledge this act as unconstitutional. Upon receiving a final resolution of the Constitutional Council the proceedings on the case shall be revived.

Violation of law by the court in the course of case adjudication shall be unacceptable and shall result in cancellation of illegal judicial acts. A judge guilty of the violation of law shall bear full responsibility stipulated by the law.

Should the court in the course of the case adjudication establish noncompliance of an act issued by a state agency or another agency with a law, or that the act was issued with the excess of powers, the court shall apply the prevailing legal acts.

In the event of lack of legislation regulating legal relations in dispute, the court shall apply rules of law regulating similar relations; in case of lack of such rules of law the court shall settle the dispute based on common principles and meaning of the law.

If legislation acts or an agreement of parties to a dispute stipulate resolution of relevant issues by the court, the court must settle these issues based on requirement of equity and reasonableness.

Exclusiveness of administration of justice by the court. Justice on civil cases shall be administered only by court and under the rules, established by the civil procedure legislation. Appropriation of the court powers by whosoever shall be punishable as provided by the law. Resolutions of emergency courts or other illegally constituted courts have no legal force and are not subject to enforcement. Decision of a court which conducted the civil proceeding on a case being out of its jurisdiction and exceeded its authority or otherwise substantially violated principles stipulated by the Civil Procedure Code shall be illegal and subject to cancellation. Decisions of a court on a civil case may be audited and revised only by relevant courts in the order defined by the Civil Procedure Code.

Judicial remedy of rights, liberties and legitimate interests of a person. Everyone is entitled, in the order prescribed by the Civil Procedure Code, to apply to the court for defense of violated or disputed constitutional rights, liberties or legitimate interests protected by the law. State agencies, legal entities or citizens have the right to apply to the court for defense of rights and legally protected interests of other persons or unspecified persons in cases provided by the law.

A prosecutor is entitled to apply to a court with a suit (a petition) for the purposes of fulfillment of the entrusted duties and for defense of rights of citizens, legal entities, public and state interests.

Jurisdiction stipulated by the law for a person may not be changed without consent of that person. A court of superior jurisdiction may not withdraw a case from proceedings of a lower court and take over it without consent of the parties.

Abandonment of the right to appeal to the court shall not be valid if it contravenes the law or violates someone's rights and interests protected by the law.

Respect of person’s honor and dignity. In the course of civil case proceeding, decisions and actions humiliating honor or diminishing dignity of a person involved in the civil process shall be prohibited. Moral damage caused to a person in the course of civil proceedings by unlawful actions of state agencies and officials shall be compensated in accordance with procedures established by the law.

Privacy. Secrecy of correspondence, telephone conversations, postal, telegraph and other messages. Private life of citizens, personal and family secrets are protected by the law. Everyone has a right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages. Limitations of these rights in the course of civil process shall be admitted only in cases and pursuant to procedures directly established by the law.

Inviolability of property. Property is guaranteed by the law. No one may be deprived of his/her property except by a court decision. Seizure of bank deposits and other property of persons as well as the property withdrawal in the course of the civil proceedings may be implemented in cases and pursuant to procedures stipulated by the Civil Procedure Code.

Independence of judges. A judge in the course of administering justice shall be independent and shall be subject only to the Constitution of the Republic of Kazakhstan and the law.

Judges and courts settle civil cases in such conditions that shall exclude any outside influence on them. Any interference in court‘s activity on administration of justice shall be prohibited and shall be subject to legal liability. Judges shall not be accountable on specific cases. Guarantees of independence of a judge are established by the Constitution of the Republic of Kazakhstan and the law.

Equality before the law and the court. Justice in civil cases shall be administrated based on equality before the law and the courts.

In the course of civil proceedings none of:

· the citizens may be given preference and none of them may be discriminated on the basis of their origin, official capacity, property status, sex, race, nationality, language, religion, beliefs, place of residence or on any other circumstances;

· the legal entities may be given preference, and none of them may be discriminated on the basis of their location, legal form of organization, affiliation, ownership or other circumstances.

Conditions of civil proceedings with regard to persons with civil immunity shall be determined by the Constitution of the Republic of Kazakhstan, by the Civil Procedure Code, by the laws and international treaties ratified by the Republic of Kazakhstan.

Language of the proceedings. Legal proceedings on civil cases shall be implemented in the official language; Russian and other languages may be applied in legal proceedings on an equal basis with the official language, if necessary. Language of legal proceedings shall be established by a decision of the court depending on the language of a lawsuit (a petition). Proceedings on any one civil case shall be implemented in the initially established language of the proceeding of that case.

To persons participating in the case with no knowledge or poor knowledge of the language of the proceedings, it will be explained that they have the right to, and the right shall be provided to make statements, to give explanations and testimony, to present petitions, to lodge an appeal, to get acquainted with the case materials and to speak in the court in their native language or in any other language they speak and to use services of an interpreter free of charge pursuant to the procedures established by the Civil Procedure Code.

Persons participating in civil proceedings shall be provided by the court with

free translation to the language of the proceedings of the materials in another language that they require by operation of law. Persons participating in civil proceedings shall be provided with free translation into the language of the legal proceedings of the part of the trial pleadings which is performed in another language. Court documents shall be handed to persons participating in a case as translated into their native language or another language they speak.

Competitiveness and equality of the parties. Civil proceedings shall be implemented on the basis of competitiveness and equality of the parties. The parties shall have equal procedural rights and shall bear equal procedural duties. In the course of civil proceedings the parties choose their position and the ways and means of maintaining their case on their own and independently from the court or other bodies and entities. The court shall be fully absolved of collecting evidences on its own initiative for the purposes of substantiation of the facts on the case; however, on a reasoned request of any party the court shall provide assistance in obtaining necessary materials pursuant to the procedures established by the Civil Procedure Code.

The judging court, maintaining objectivity and impartiality, shall create necessary conditions for fulfillment of the parties’ rights for full and objective investigation of circumstances of the case, shall explain to the parties participating in the case their rights and responsibilities, shall warn about consequences for committing and failing to commit procedural actions and in the cases stipulated by the Civil Procedure Code shall assist them in implementing their rights. The court shall base its procedural decision only on those evidences which each Party had equal access to participate in examination of.

The court shall demonstrate equal and respectful attitude towards the parties.

Evaluation of evidence by inner conviction. A judge shall evaluate evidences based on his/her own inner conviction, based on an impartial, in-depth and full consideration of all the available evidences in the whole, therewith guided by the law and conscience. No evidence has a predetermined significance for the court.

Exemption from duty to testify. No one shall be obliged to testify against himself/herself, his/her spouse and close relatives determined by the law. Members of the clergy are not obliged to testify against persons who confessed to them.

Securing rights for qualified legal assistance. Everyone is entitled to receive qualified legal assistance in the course of civil proceeding in accordance with provisions of the Civil Procedure Code. Legal assistance may be provided free of charge in the cases stipulated by the law.

Transparency of legal proceeding. Case proceedings in all courts and all judicial authorities shall be conducted openly. A trial shall be conducted in closed judicial session in accordance with the law, including if it involves announcement of judgments containing state secrets, as well as if the court grants a plea of a case participant for the need to preserve confidentiality of adoption or preservation of personal, family, commercial or any other secret protected by law or information related to the intimate aspects of the citizens’ lives or any other circumstances preventing a public trial.

Personal correspondence and private telegraph messages of citizens may be read in open court only with consent of persons involved in these conversations and telegraph messages. Otherwise, personal correspondence and private telegraph messages of these individuals shall be read and examined in a closed judicial session. The aforementioned rules shall be applied also in the course of examination of photo- and film documents, audiotapes and videotapes as well as messages received through other technical devices containing private information.

If the trial is conducted in a closed judicial session, it will be attended by persons participating in the case and their representatives, as well as witnesses, experts, specialists and interpreters, if necessary. A decision to conduct a trial in a closed judicial session shall be made by court by way of a reasoned ruling.

Citizens under sixteen years old shall not be admitted to a courtroom unless they are persons participating in the case or witnesses. A trial in a closed judicial session shall be conducted in accordance with all rules of the civil procedure. Persons participating in the case and citizens in presence in open court proceedings have the right to document the trial process either in writing or with use of audio recording from their seat in a courtroom. Any camera and photo camera recording, video recording, direct radio and TV broadcasting in the course of a trial shall be permitted upon approval of the court with taking into account opinions of persons participating in the case. These actions should not interfere with a regular process of the trial and may be time-limited by the court.

Ensuring security at trial. A trial shall take place under conditions ensuring regular operation of the court and safety of the process participants. For the purposes of ensuring safety of a judge and citizens in presence in a courtroom, a chairperson may order to inspect persons willing to attend the trial including verification of their identity documents, personal inspection and inspection of things they bring to the courtroom.

Obligatory force of judicial acts. A court shall issue judicial acts on civil cases in the form of decisions, rulings, regulations and orders. Effective court decisions, rulings, decrees and orders, as well as lawful prescriptions, requirements, instructions, summons and other form of address of courts and judges shall be obligatory for any and all state agencies, local government authorities, public associations and other legal entities, officials and citizens, and shall be subject to mandatory implementation over the entire territory of the Republic of Kazakhstan.

Judicial acts based on a law or any regulatory legal act held unconstitutional by the Constitutional Council of the Republic of Kazakhstan shall not be subject to enforcement.

Obligatory force of a judicial act shall not deprive concerned parties that did not participate in case of the opportunity to apply to court for protection of

violated or disputed rights, liberties and interests protected by the law.

Failure to enforce judicial acts and equally any other demonstration of contempt of court shall be punishable in accordance with the law.

Right of appeal of procedural actions and decisions. Actions and decisions of a court may be appealed pursuant to procedures established by the Civil Procedure Code. Persons participating in the case have the right to appeal to a court of superior jurisdiction pursuant to procedures established by the Civil Procedure Code.

Value of civil procedure principles. Violation of civil procedure principles entails cancellation of court decisions, depending on their nature and essence.

Дата добавления: 2014-10-17