Review and analysis of recent amendments to the Civil Procedure Code of the Republic of Kazakhstan
The Law of the Republic of Kazakhstan dated June 10, 2020 introduced amendments and additions to the Civil Procedure Code of the Republic of Kazakhstan (“CPC”) on the issues of introducing modern formats for the work of courts, reducing unnecessary judicial procedures and costs” (“the Law”).
This Law is aimed at continuing the modernization of the judicial system, reducing unnecessary court procedures and costs. More than 150 amendments aimed at introducing new approaches to the procedural role of a judge, optimizing procedural actions, and further digitalization of legal proceedings were considered. In particular, the rules on the new role of the court in the process of collecting and examining evidence in civil proceedings were improved. To guarantee the procedural rights of citizens, the conditions for the use of technical means in a court hearing have been determined. Amendments were adopted concerning the procedural status of some persons participating in the consideration of the case, including a translator, consultant, bailiff, etc., concerning the rules governing various forms of reconciliation, including at the stage of accepting the case. The specifics of making a decision in cases of simplified (written) proceedings, a number of provisions to improve the execution of court decisions in civil cases are regulated, and the procedure for considering the issue of replacing measures to secure a claim is clarified.
The author of this article is a practicing lawyer in litigation, and also has thirty years of experience as a judge in the Republic of Kazakhstan. Below is the author's overview of the main changes to the Code of Civil Procedure.
The role and tasks of the judge in civil proceedings
The current Code of Civil Procedure provides for rules according to which the court was completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case. During civil proceedings, the parties choose their position, methods and means of defending it independently and independently of the court and other persons participating in the case.
However, judicial practice has shown that the parties were not always equal in terms of legal literacy, and this situation led to the fact that one or another party could not fully defend its position, and could not fully provide certain evidence to substantiate its position and arguments. As a result, the circumstances of the case were not fully clarified, and the dispute was not resolved in the courts quite objectively and correctly. Consequently, in fact, there was an incomplete establishment of all the circumstances of the case and their proper investigation. Subsequently, this led to the cancellation of judicial decisions in higher authorities and the re-examination of the case by another judge, additional costs for the parties and the court.
In order to eliminate these circumstances, the law provides for the introduction of new approaches to the procedural role of the judge, granting the court the authority to create the necessary conditions for the parties to exercise their procedural rights to a full and objective examination of the circumstances of the case, as well as expanding the tasks of civil proceedings, which now also include ensuring a complete and timely consideration of the case.
- The court, while maintaining objectivity and impartiality, manages the process and creates the necessary conditions for the parties to exercise their procedural rights to a full and objective examination of the circumstances of the case. The court explains to the persons participating in the case their rights and obligations, warns about the consequences of performing or not performing procedural actions, clarifies their legal positions and arguments, discusses the circumstances of the case with them and, in cases provided for by this Code, assists them in the exercise of their rights. The court bases the decision only on that evidence, participation in the study of which was provided to each party on an equal basis.
- The court, at the motivated request of a party or on its own initiative, takes measures to collect and study case materials, verify the validity of the parties’ arguments and the reliability of the evidence provided to the court, and also perform other actions aimed at achieving the objectives of civil proceedings.
It follows that the court, in addition to explaining the rights and obligations of persons participating in the case, warnings about the consequences of performing or not performing procedural actions,must clarify their legal positions and arguments, discuss with them circumstances of the case and in cases provided for by this Code,give them assistance in the implementation of their rights. At the request of the parties, or on its own initiative, the court must take measures to collect evidence. This will ensure completeness when considering the case if the court determines that not all the circumstances of the case have been established and the evidence presented to the court is insufficient for the correct consideration of the case.
The rule providing for complete freedom of the court from collecting evidence on its own initiative is excluded by law.
Moreover, the Civil Procedure Code of July 13, 1999 No. 411-I already provided for the powers of the court, according to which the court had to ensure in each case the comprehensiveness and completeness of the collection and study of the circumstances of the case necessary for the correct resolution of the case.
Introducing changes into the rules for transferring cases to jurisdiction in civil proceedings
The law also amends Article 34 of the Code of Civil Procedure on the rules for transferring cases to jurisdiction. If a dispute about jurisdiction arises between courts of first instance located in different regions, cities of republican significance, the capital, then the dispute about jurisdiction is resolved by the Supreme Court of the Republic of Kazakhstan upon the proposal of the corresponding regional or equivalent court.
If jurisdiction is determined with the written consent of the parties to the dispute, the case is immediately transferred to jurisdiction in accordance with the court’s determination, without waiting for the determination to enter into legal force. This will avoid red tape and reduce the time for consideration of the case.
Recusal of a judge in civil proceedings
The Law clarifies the circumstances of consideration of the challenge of a judge in civil proceedings, declared outside the court session. Such an application is subject to consideration by a judge without notifying the parties no later than the next working day from the date of its receipt, and if additional circumstances need to be clarified, at the next court hearing.
In practice, there are cases when the parties challenge a judge not in court, but by mail, and therefore it was necessary to schedule a court hearing to consider it. This required additional procedural actions and costs for scheduling a court hearing, calling the parties, and holding a court hearing.
Based on the above, these changes to the Civil Procedure Code help eliminate red tape and speed up the consideration of the case.
Simplified consideration of civil cases by the court
The property threshold has been significantly increased for cases subject to a simplified procedure for claims for the recovery of money, if the cost of the claim does not exceed 2000 MCI for legal entities, previously it was 700 MCI, for individual entrepreneurs and citizens - 1000 MCI, previously it was 200 MCI.
The procedure for considering a case in simplified (written) proceedings is regulated, which provides that the court notifies the parties about the consideration of the case in simplified (written) proceedings no later than the next working day from the date of its adoption. This notification may be sent to an email address or mobile phone number, as well as using other means of communication that ensure recording of the notification.
If the parties disagree with the consideration of the case in simplified (written) proceedings, they have the right, within 15 working days from the date of receipt of the notification, to submit to the court a petition to consider the dispute according to the rules of claim proceedings in the general manner, and the defendant must also submit a response (objection) to the claim with documents and evidence attached. If a request to consider a dispute in a general manner is submitted to the court after a decision is made, then it is accepted and considered as an application to cancel this decision.
In practice, there are often cases when petitions are received late, so determining such a procedure for canceling a decision by the court itself is correct, since it allows you to eliminate red tape. This is also evidenced by the reduction in the time limit for serving a court decision from five working days to three.
New rules for accepting a statement of claim in civil proceedings
The law introduced new changes to the wording of Part 1 of Art. 150 of the Code of Civil Procedure: “During conciliation procedures, the statement of claim is acceptedfor ten working daysfrom the date of receipt of the claim. The results of conciliation procedures are indicated in the court's ruling on acceptance or refusal to accept the statement of claim. Conciliation procedures when accepting a statement of claim are carried out by a judge according to the rules provided for in Chapter 17 of this Code.”
Meanwhile, it cannot be considered completely correct and appropriate to make such additions, since this extends the period for accepting the statement of claim by another 5 working days, which is inappropriate.
In addition, the last paragraph that conciliation procedures when accepting a statement of claim are carried out by a judge according to the rules provided for in Chapter 17 of the Code of Civil Procedure contradicts the fact that conciliation procedures must already be carried out before the issue of accepting the statement of claim is decided and its results must be reflected in the court’s ruling on accepting the statement of claim or refusing to accept it.
Foreclosing on the debtor's real estate in enforcement proceedings
The addition of Article 250-1 to the Civil Procedure Code is correct in the opinion of many lawyers:
During the enforcement of a court decision, if it is impossible to repay the debt at the expense of other property or if the property is insufficient, the claimant or the bailiff has the right to apply to the court with an application to foreclose on the debtor's real estate. The court considers an application for foreclosure on the debtor's real estate within ten working days from the date of receipt of the application by the court at the location of this property. The claimant, debtor and bailiff are notified by the court of the time and place of the court hearing, but their failure to appear is not an obstacle to resolving the application. The court issues a ruling on the results of consideration of the application.
The adoption of this norm will allow both the claimant and the bailiff to identify the debtor’s property and foreclose on this property as soon as possible. We believe that giving them such rights and short terms for consideration of such cases will help discipline the debtor, will not allow the debtor to hide his property, and will also facilitate the execution of judicial acts faster and at lower costs.
Use of technical means in court hearings
The addition of Article 187-1 to the Code of Civil Procedure is justified, since this article will regulate the rules for the use of technical means in a court hearing.
Now the persons participating in the case, their representatives, as well as witnesses, experts, specialists, translators have the right, in the manner established by this Code, to use technical means with material and digital media during the trial to extract the necessary information on issues that arose during the consideration of the case, gain access to information and legal systems, Internet resources, find out the proper notification and other circumstances relevant to the case, as well as record the progress of the court hearing.
Failure to comply with the procedure for using technical means excludes the possibility of using the obtained data and is the basis for bringing the guilty person to justice.
Filming and photography, video recording, live radio and television broadcasts, video broadcasts on the Internet information and communication network are allowed in the courtroom with the permission of the court and taking into account the opinions of the persons participating in the case. This is indicated in the court ruling, which is entered into the minutes of the court session. These actions must not interfere with the normal course of the court hearing and
may be limited by the court in time. Non-compliance with which excludes the possibility of their use and distribution in the future and is the basis for bringing the guilty person to justice for contempt of court.
These changes to the Code of Civil Procedure are timely and justified, as this will avoid paperwork and other red tape. If necessary, the court and the parties to the trial can check this or that circumstance without postponing the court hearing. For example, this will allow a person who is unable to attend a court hearing to be heard using technical means, which will significantly reduce the time of consideration of the case and costs.
Other changes to the Code of Civil Procedure:
- Throughout the text of the Code of Civil Procedure, the concept of “deliberation room” is excluded, however, it must be taken into account that the exclusion of this concept does not mean that the courts will not be removed from the courtroom to issue a judicial act. The amendments clarify that the court is removed to make a judicial decision. The decision is made in conditions that exclude the presence of unauthorized persons and the disclosure of the secrets of the meeting.
- The wording of Part 4 of Art. has been changed. 126 of the Code of Civil Procedure, which regulates the procedure for considering an application for restoration of a missed procedural deadline. Now the Civil Procedure Code stipulates that “persons participating in the case are immediately notified of the receipt of an application and have the right to submit a response to the court. The court considers and resolves the application for restoration of the missed procedural deadline within ten working days from the date of its receipt by the court. The court has the right, at its discretion, to consider an application for the restoration of a missed procedural period without summoning the persons participating in the case, or to schedule a court hearing. At the same time, the failure of persons participating in the case, duly notified of the time and place of the court hearing, is not an obstacle to the consideration of the application.” The introduction of such a procedure will allow the party to provide feedback on the received application for the restoration of the missed procedural period, which in turn will allow the court to objectively consider the received application and correctly resolve it.
- The law specifies that the issued court order is sent for execution directly by the court, i.e. The phrase “can be directed” has been excluded. The article is also supplemented by the fact that a court order can be issued to the claimant for execution or, at the request of the claimant, it is sent by the court for execution, in addition to the justice authority, also to the regional chamber of private bailiffs by territoriality.
- In order to optimize the activities of the courts, the legislator has provided for a reduction in the number of individual rulings currently made by the courts on certain issues. In particular, regarding the need to consider a case in a lawsuit, it can now be indicated in the ruling on preparing the case for trial; the same ruling should also indicate the actions that must be performed by the persons participating in the case, and the timing of the actions.
- The new version of Article 201 of the Code of Civil Procedure provides that the consideration of the case on the merits begins with the judge setting out the plaintiff’s demands, the defendant’s objections, facts not disputed and disputed by the parties, as well as evidence presented by the parties. This will significantly reduce the time for consideration of the case, since in practice, the parties often present their demands and objections for a long time, repeating the full text of the statement of claim or response to the claim.
- The law excluded from paragraph Part 1 of Art. 169 of the Code of Civil Procedure the phrase “until the preparation of the case for trial is completed.” Consequently, this enables the plaintiff to exercise his right to change the basis or subject of the claim, increase or decrease the amount of claims by filing a written statement before the court leaves for a decision in the absence of the need for additional procedural actions, that is, during the entire judicial consideration of the case.
An analysis of the proposed changes to the Code of Civil Procedure, aimed at modernizing the judicial system and reducing judicial procedures, allows us to conclude that the proper application of all these norms will contribute to the correct, complete consideration of cases and their effective resolution in the shortest possible time.
Author: Z.O. Madybaeva, Advisor to the Litigation Department, GRATA International
