- A number of amendments to the Civil Procedure Code of the Republic of Kazakhstan were introduced by Laws of the Republic of Kazakhstan adopted in 2014. Part of them was put in effect in 2014, and the other part will become effective from January 1, 2015.
- Chapter 26, governing the proceedings in cases of administrative offenses (regarding appeals against rulings of the body and/or official authorized to consider cases on administrative offenses), is excluded from the Civil Procedure Code (further CPC) from January 1, 2015. Starting from 2015, such cases will not be considered in the civil proceedings – they will be subject to consideration in accordance with the rules provided by the new Code of Administrative Offences of the Republic of Kazakhstan dated July 5, 2014, which will enter into force on January 1, 2015.
- Specialized financial court jurisdiction was removed from the CPC. The court itself was abolished. This category of cases was transferred to the specialized inter-district economic courts.
- Res judicata concept was introduced for the effective court decisions on administrative cases in the matter of determining guilt within the civil procedure, i.e. administrative court decisions will not henceforth be subject to any review in the civil procedure in part of establishing guilt.
- Apart from the advocates, now other persons can be legal counsels in court, providing that they have a higher legal education.
- A simplified procedure for the consideration of civil cases was introduced in the CPC.
- Appeals, cassation appeals and petitions for reconsideration of court orders in supervision proceedings are now subject to the state fee.
The most significant amendments to the Code of Civil Procedure were introduced by the Law on "Amendments to the Certain Legislative Acts of the Republic of Kazakhstan on Further Simplification of the Administration of Justice, Lessening Bureaucratic Procedures" as of 17.11.2014. These novelties mainly came in effect on November 30, 2014, and some of them will enter into force on January 1, 2015.
Let us examine them in detail.
- Before, in order to ensure safety, the presiding judge under Article 20 of the CPC could issue an order to check persons who wished to be present at the hearing, including the verification of documents proving their identity, personal inspection and inspection of their personal belongings. Now, according to the new wording of the article such inspection is deemed mandatory and shall be conducted by bailiffs without any special order of the presiding judge.
- Article 47 of the CPC, governing the rights and obligations of the participants of a trial, is amended by Part 3 reading as follows: "Participants of a trial are entitled to address the court in writing or in electronic form". Thus, the participants of a trial have now the right to file documents to the court in electronic form.
- Article 49 was also amended ("Change of the ground or of the subject of a claim, abandonment of a claim, recognition of a claim, settlement agreement, agreement to settle the dispute (conflict) through mediation"). Now the change of the ground or of the subject of the claim, increase or decrease of the amount claimed, are subject to filing a written application before the closure of proceedings on merits. Previously it was allowed to do so at any stage of proceedings until the moment the court renders a decision. Now such right remains in effect only for the abandonment of a claim.
- It is known that there were a lot of debates about the possibility to be legal counsel in court not only by the advocates but by any persons, including those who have no legal education. Subparagraph 7) of Article 59 of the CPC allowed other persons admitted by the court at the request of the participants of a trial, to be legal counsel by relevant order. This provision has changed, now legal counsels by relevant order may be any persons with a higher legal education. Accordingly, we assume that the competence of such persons in addition to the power of attorney must be confirmed by a notarized copy of the diploma confirming higher legal education.
- According to the new wording of the Paragraph 3 of Article 62 of the CPC, the authority of an advocate to conduct a particular case must be supported in addition to the order by the power of attorney issued by a counseling bureau, an office of the of the Bar Association, and if an advocate practices individually, the order should be issued by the Presidium of the Bar Association. Authority of an advocate to perform any procedural action listed in the Part 1 of Article 61 of the CPC (signing of a statement of a claim, complete or partial abandonment of a claim and recognition of a claim, change of the subject or ground of a claim, signing of a settlement agreement, and so on) must be confirmed by a notarized Power of Attorney.
- The rules for presenting evidence to the court were toughened. Now, in accordance to the Paragraphs 1 and 3 of Article 66 of the CPC, the parties and other participants of a trial are required to submit evidence to the court of first instance. The parties have the right to refer only to the evidence that was disclosed during the trial. Failure to submit evidence, available to the party, to the court of first instance, rules out the possibility of presenting the evidence to the court of appeal, cassation, supervisory authorities, except for the cases as provided for in the CPC. As known, under the CPC, new evidence may be submitted by the parties to the court up the ladder only if it is impossible to doso in the court of first instance for reasonable excuse.
- Article 71 is supplemented by the Part 3-1, which provides for the new ground for exemption from the burden of proof: the guilt of a person who was found guilty in committing of an administrative offence by a court resolution entered into force with regard to the case of an administrative offense is not subject of consideration in the civil proceedings came out of such administrative offense. Thus, judicial acts on the cases of an administrative offense now have prejudicial importance in issues of establishing guilt in civil proceedings.
- The CPC was supplemented by the Article 105-1 ("The postponement of payment of the state fee"), which provides for the provision by a court of a delay in payment of the state fee prior to rendering a decision on consumer protection claims filed by an individual.
- Article 129 ("Judicial notices and summons") is supplemented by the Part 5 in which the definition of "proper notice of the party to a trial" is given. “Proper notice of the party to a trial” means a notice received by one of the adult members of the family of the party to a trial, residing at the given address, sent via registered mail with return receipt requested, a telephone message, or a telegram, as well as a report confirming the delivery of the text message to the given mobile subscriber number or email address, or via other means of communication which can record the delivery of the notice or summons, providing that the party to a trial fails to prove that it has not received the notice or has received it later.
- Article 140 ("Claims on which court orders are rendered") also underwent changes. In particular, Paragraph 2 of the given article has a new wording. According to it, a court order is rendered, if the claim for the recovery of money follows the debtor’s failure to perform the contractual obligation, the deadline for the fulfillment of which is over, and the debtor has acknowledged its failure to perform the contractual obligation in writing. In comparison, the wording of the older version runs as follows: "if the claim is based on written transaction and recognized by the defendant." Thus, now the conditions for the issuance of a court order on claims that are based on written transactions are governed in more details. The new wording of the Subparagraph 11 of Article 140 makes it possible to collect the debt by a court order, not only for the costs of maintenance of common property of condominium facility, but also the debt under public contracts for the actually consumed services (electricity, gas, heat, water, telephone and Internet, cable television, garbage collection). In addition, there are other claims with regard to which a court order is rendered, in particular, those concerning the indexation of the awarded amounts.
- Now the CPC has a new procedure for simplified consideration of civil cases. New chapter 13-1 (Articles 149-1 to 149-4) is devoted to it. The following claims are subject to consideration in a simplified procedure: claims for the recovery of money, providing that the price of a claim does not exceed 500-fold monthly calculation index for legal entities or 100-fold monthly calculation index for sole entrepreneurs and individuals, as well as regardless of the price of a claim for claims based on documents submitted by the plaintiff, establishing pecuniary liabilities of the defendant, and (or) on documents confirming the debt under the contract.
Cases that are considered in a simplified procedure shall be considered by applying the general rules of action proceedings, but with some particularities: the period of consideration of the case is one month, the case is considered without keeping records, without summoning the parties to a trial after expiry of the deadline set by the court for submission by the parties to a trial of revocation, evidence and other documents; the court decision is rendered based on the parties' evidence submitted within the indicated period.
- The terms of accepting a counterclaim (Article 156) have changed: in the older version, the defendant was entitled to bring a counterclaim against the plaintiff until the moment of rendering by the court of first instance of a court decision. Now it is allowed to do so only until completion of consideration of the proceedings on merits. The purpose of this novelty is clear: to avoid delaying the proceedings by the defendant.
- Procedure for conciliation through a settlement agreement was given a special focus: The Code was supplemented by the Chapter 16-1 ("Settlement Agreement"), consisting of five articles, which set requirements for the form and content of a settlement agreement, govern the procedure for entering into a settlement agreement and adoption of such by the court, as well as its implementation. Additionally, there are requirements for the content of the court order approving the settlement agreement. Most of these rules were contained in the Code of Civil Procedure, but they were scattered throughout the code; now they are all gathered together in one chapter.
- Now that the parties and other participants of a trial have the possibility of obtaining from the court a copy of the court decision, default judgment, court ruling in the form of an electronic document. For this, it is necessary to file a relevant request to the court.
- Keeping an audio or video recording of the court session substitutes the record of the hearing, that is either the record of the hearing is kept in writing, or an audio or video recording of the hearing is made. In this regard, the Code is supplemented by two articles 257-1 and 258-1, governing the recording of the court session by means of audio or video recording (audio, video protocol) and bringing the comments on audio or video recording of the court session.
- From now on, when filing appeals, cassation appeals, or petitions for judicial review of court acts under the supervisory proceedings, it is necessary to pay the state fee. A document confirming payment of the state fee must be attached to the complaint, petition. Otherwise, the complaint or petition will be returned to the person who submitted them. The amount of the state fee is set in the Article 535 of the Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget" dated 10.12.2008 ", amended by the Subparagraph 14, at the rate of 50% of the amount of the state fee charged for filing a statement of claim for non-property disputes, and 50% of the of the amount of the state fee calculated, based on the disputed amount claimed by the claimant, for property disputes.
It is undeniable that the said amendment infringes the constitutional right of the involved party to judicial protection. Obliging the parties to a civil case to pay the state fee in the filing of an appeal, cassation appeal or supervisory complaint, especially at such big rates, contradicts the guaranteeing of the right to judicial protection under the law, including the access to justice, the provision of possibility to any person to demand the review of the case by a court up the ladder. This innovation is aimed rather at substantially reducing the number of complaints to the courts up the ladder, rather than on improving the quality of justice in the consideration of civil cases.
Developed by Ospanova Gulnar, Partner.