Civil proceedings are conducted on the basis of competition and equality of the parties.

           In accordance with Article 15 of the CPC, civil proceedings are conducted on the basis of competition and equality of the parties. The parties involved in the civil procedure are endowed by this Code with equal opportunities to defend their position. In the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court and other persons involved in the case. This follows from Article 15 of the CPC, which states that the court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case, however, upon a reasoned request, the parties assist it in obtaining the necessary materials in accordance with the procedure provided for by this Code. An analysis of the information provided and the cases studied allows us to conclude that the persons involved in the case do not always demonstrate a high level of legal culture. Sometimes they carry out actions that are disorganizing and delaying the process, indicating abuse of rights. The legal consequences of violations of the law preventing the abuse of rights were not applied by the courts in individual cases, which created conditions for the continued abuse of rights by persons involved in the case, led to a delay in the process and prevented the timely restoration of violated rights and the protection of legally protected interests of citizens.  The rights and obligations of the persons participating in the case are regulated by Article 46 of the CPC, including the obligation to conscientiously exercise all procedural rights belonging to them, without abusing the rights of others, without violating their interests, without intentionally delaying the consideration and resolution of the case. The persons participating in the case are obliged to declare to the court the actual circumstances of the case fully and truthfully, to speak out or submit to the court written documents refuting the facts claimed by the other party. Failure of the persons participating in the case to fulfill their procedural duties entails the occurrence of procedural consequences provided for by this Code. An important procedural action of the court, a preventive measure to prevent abuse of procedural rights, is to explain the rights and obligations to the persons involved in the case, indicating the legal consequences of failure to fulfill duties at the early stages of the process.

An indication of the rights and obligations provided for in Article 46 of the CPC must be included in the content of a court summons or other notification, summoning in accordance with the requirements of subparagraph 7) of the first part of Article 128 of the CPC, explained by the judge to the parties at the stage of preparing the case for trial by virtue of subparagraph 3) of Article 165 of the CPC. According to Article 194 of the CPC, the presiding judge only makes sure in court proceedings that the persons participating in the case are familiar with the procedural rights and obligations, and in case of ignorance explains to them the rights and obligations. The courts of the Pavlodar region, according to the statements of claim received through the electronic service "Judicial Cabinet" and the information system "Torelik", the procedural acts, including the definition of preparing the case for trial, are put into the electronic database and the participants in the process through the electronic service get acquainted with the rights and obligations provided for in Article 46 of the CPC. The rights and obligations, as well as the legal consequences of late presentation of evidence, are also explained at the preliminary court session or directly at the court session (if the persons involved in the case did not attend the interview and did not participate in the preliminary court session). In addition, the courts fill out sheets of familiarization with procedural rights and obligations, in which the persons involved in the case sign directly at the court session after explaining their rights and obligations. These sheets are attached to the case file. The specified procedural actions of the judge are recorded by means of audio and video recordings. The courts of the East Kazakhstan region and the city of Astana take away the receipt from the parties on familiarization with the rights and obligations. In order to exclude unfounded complaints about the lack of explanation of rights and obligations in cases where there is no audio-video recording of the preliminary court session and no minutes are kept, the position of the courts using any kind of recording of the performance of such actions seems to be correct. The most accepted approach by citizens and their representatives is an oral explanation by a judge of the rights and obligations to the parties of the legal consequences of failure to provide evidence, the right to conciliation procedures at the stage of preparing the case for trial in accordance with the requirements of subparagraphs 3), 4), 5) of Article 165 of the CPC. Such actions, in the absence of an ABF, are recorded in writing with a statement of the content of the CPC norms governing these issues, and a certificate of their conduct by the court with the signatures of the persons participating in the case in the familiarization sheet.

At the same time, the ruling on the preparation of the case for trial indicates that the judge has carried out actions with reference to articles regulating these issues, and a familiarization sheet is attached. The development of a sample notice and summons with the inclusion in their content of the provisions of Article 46 of the CPC in accordance with subparagraph 7) of the first part of Article 128 of the CPC will ensure a unified approach to the implementation of this procedural action by the courts. Article 72 of the CPC imposes the obligation of proof on the parties. The parties must perform such actions within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings. Cases of violations of these norms by citizens participating in the process without a representative, citizens and legal entities with representatives in court have been established. An approximate list of violations that clearly do not contribute to the proceedings in court: failure to provide feedback and evidence within the time limits set by the court; evasion from appearing in court on summons and court notices; filing petitions before the end of the trial in order to delay the process; leaving the courtroom before the end of the trial; disobeying the orders of the presiding judge in the case; filing a knowingly unjustified claim; filing a claim without culpable behavior of the defendant, etc. Meanwhile, according to Part 2 of Article 21 of the CPC, lawful orders, demands, orders, summonses, requests and other appeals of courts and judges in the administration of justice are mandatory for all state bodies, local governments, legal entities, officials, citizens and are subject to execution throughout the territory of the Republic of Kazakhstan. Such violations were committed by representatives: lawyers, persons with higher legal education (hereinafter referred to as representatives by proxy), employees of legal entities, despite their status and legal education. The most common types of abuse of rights by representatives, entailing an unjustified delay in the process, due to the need for postponement of the trial by the courts, are: repeated application for the same case to challenge the judge on grounds not provided for by law; submission of an addendum to the claim, objections to withdrawal, new evidence, petitions for review of documents are not at the stage of preparing the case for trial, and at a court hearing; creating obstacles to reconciliation of the parties, etc. By virtue of the first part of Article 57 of the CPC, citizens have the right to conduct their cases in court personally or through representatives. Personal participation in a citizen's case does not deprive him of the right to have a representative in this case. The majority of cases were attended by representatives of the parties by proxy – persons with higher legal education (hereinafter referred to as representatives by proxy), and not lawyers. For example, the courts of Astana completed 57,669 cases in 2016, 2,995 of them involving lawyers, and 22,179 cases involving proxy representatives, including employees of legal entities.

The courts of the North Kazakhstan region considered 5,645 civil cases with the participation of representatives of the parties, in which 1,808 lawyers and 3,857 proxy representatives participated. According to the information of the Aktobe Regional Court, the share of participation of lawyers in civil cases is decreasing and representatives by proxy are more likely to participate in court. In some districts of the region, lawyers participate in cases where their participation is mandatory, which is explained by the insufficient number of lawyers in the region to ensure citizens' right to qualified legal assistance. The ratio of participation of lawyers/representatives by proxy in 2016 is as follows: Baiganinsky district court – 1/11; Mugalzharsky district court – 8/63 (one lawyer is assigned to the court by the bar association); Mugalzharsky district court – 250/104; Martuksky district court – 11/42; 5% of cases were considered with the participation of lawyers in the SMEC. Representatives by proxy participate in the Irgiz district Court, since there is no legal advice in the district, one lawyer is assigned to the court by the bar association. In the military courts of the republic, the ratio of participation of lawyers/representatives by proxy in court proceedings is 45/123. A similar situation is observed in other courts of the republic. In the Karaganda region, the institution of representation is developed and the percentage of participation in cases of both lawyers and representatives by proxy is relatively equal. A similar ratio of representation in the South Kazakhstan region is 40% / 50%. In the Mangystau region, citizens turn to the services of individuals who often do not have higher legal education, but work in law firms and provide legal assistance through consultations, preparing a review, and counterclaim. In cases of abuse of rights by representatives, the courts more often limited themselves to making private rulings against lawyers and employee representatives of legal entities, the execution of which was not always monitored, rarely refused to collect representative expenses or brought to administrative responsibility for showing contempt of court. In relation to representatives by proxy, due to the inability to issue a private ruling for such violations, the courts, on the contrary, brought them to administrative responsibility or did not take any measures at all. Incorrect behavior of representatives in the courts: lawyers and representatives by proxy – negatively affected the timely restoration of violated rights of citizens, ensuring the right to qualified legal assistance. For example, the Yessil District Court of Astana issued a private ruling against the plaintiff's lawyer for contempt of court in response to B.'s lawsuit against JSC for recognizing the actions of submitting materials on the deprivation of the Bolashak international scholarship to the commission as illegal. During the court debate, the lawyer defiantly left the courtroom without court permission, which did not ensure his client's right to represent his interests in court. The court pointed out that the lawyer had committed a gross violation of the professional standards of conduct of a lawyer and the norms of the CPC, the Law of the Republic of Kazakhstan "On Advocacy", the Code of Professional Ethics of Lawyers, which is unacceptable. The results of the review of the private ruling were not communicated to the court, although the court sent three reminders to the Ministry of Justice of the Republic of Kazakhstan about its execution. During the consideration by the Almaty District Court of Astana of the case on the claim of M. K. TOO and others. on the recovery of damages in connection with the flooding of the apartment and representative expenses in the amount of 250,000 tenge, the plaintiff was represented by her spouse by proxy. They filed two unjustified challenges to the judge. According to the minutes of the court session, the representative behaved in an undisciplined manner, about which comments were made to him.

In the court of appeal, the representative also challenged the judges twice, but did not attend the board meeting. For repeated violations of the order in the court session, he was subjected to an administrative penalty in the form of a fine. The Bostandyk District Court of Almaty issued a private ruling against the Presidium of the AGCA for violations committed by the lawyer in the case of the claim of P. et al. to the KSP for the recovery of documents and elimination of violations of the rights of owners of premises and others. The court repeatedly reprimanded him for being late for court sessions and for violating the order in the court session. During the consideration by the Kyzylorda City Court of the case on the claim of E. et al. to the notary, JSC for invalidation of the contract, the plaintiff's lawyer, contrary to the norms of the CPC, the Law "On Advocacy", violated the order in the court session. A warning was given to the lawyer for disrespect shown to the court, and subsequently a private ruling was issued. In the courts of the Zhambyl region, violations by lawyers regarding the presentation of claims for the recovery of representation expenses have been established. In the case of D. The lawyer representing her did not participate in the court of appeal, which was the reason for the postponement of the case. The Board acknowledged that the lawyer had provided unqualified legal assistance to D., who is a veteran of labor and an old-age pensioner. Despite this, the lawyer estimated the representative services at 70,000 tenge. The Court of appeal sent a letter to the bar association about the facts of providing unqualified legal assistance and the need to provide free legal assistance to socially protected segments of the population, the list of which is given in Article 68 of the Law of the Republic of Kazakhstan "On Housing Relations". During the consideration of the case on the claim of the Joint-stock company to the Sole proprietor for debt collection, the application for reimbursement of the costs of paying for the services of a lawyer from the republican budget was refused. In accordance with Article 114 of the CPC, the defendant R. She did not apply for exemption from paying for legal aid, and the court did not appoint a lawyer for the defendant. In the military courts of the Republic, abuse of rights is expressed in failure to appear without valid reasons or in connection with employment in other trials, delays in court sessions, failure to take measures to promote reconciliation of the parties, mainly by proxy representatives. The courts have not taken any response measures against such persons in order to curb the abuse of rights. The low quality of representation by proxy representatives is indicated by the courts of the East Kazakhstan and West Kazakhstan regions. Representatives by proxy declare unjustified challenges in order to delay the process. For example, in the courts of the Karaganda region in the cases of K., the representative in all court sessions challenged the judges who considered the cases of her principal, including the same judge three times, which led to the adjournment of the case to discuss petitions. In the case of A.'s application to appeal the illegal action (inaction) of I.O. The representative of the applicant, S., challenged the judge and prosecutor five times, preventing the examination of the case on the merits.

In the case of the IP's claim against K. for debt collection, the same representative of S. twice challenged the judge. Administrative penalties have not been taken against representatives who abuse their rights and make incorrect, sometimes offensive statements on behalf of the principals, both to the participants in the process and to the court. In support of the position, the Karaganda Regional Court refers to the fact that these are representatives by proxy, petitions and complaints are drawn up and signed on behalf of the principals. Meanwhile, Article 119 of the CPC does not contain any exceptions for bringing perpetrators to administrative responsibility for showing contempt of court. The lawyer's calendar through the AIAS "Torelik" and the "Judicial Cabinet" is designed to exclude unreasonable requests from lawyers for postponement of cases, unjustified delay of trials. The lawyer's calendar is used by the courts of Astana city, the courts of Zhambyl and Pavlodar regions, with the exception of the Astana City Council (technical problems) and the Pavlodar City Council (3% participation of lawyers in cases). The courts of the Mangystau region did not use the lawyer's calendar due to the sending of SMS messages, notification on the portal of the Supreme Court. After the appointment of the case, the secretary of the court session, filling out the case card in the AIAS "Torelik" program, in the "court session" tab, has the opportunity to check the registered participant of the court session for calendar employment. According to the courts of the North Kazakhstan region, due to the lack of complete data on court sessions scheduled by other courts of the Republic of Kazakhstan in the lawyer's calendar, its use does not ensure the achievement of the goal of excluding unjustified postponement of the case. In order to curb the abuse of the right of representatives by proxy, it seems appropriate to discuss the possibility of introducing a "judicial representative calendar" by expanding the subject composition of representatives. According to the second part of Article 58 of the CPC, the cases of legal entities are conducted in court by their managers acting within the powers granted to them by law, other regulatory legal acts or constituent documents, and (or) their representatives. These norms are observed and the interests of legal entities in the courts are mainly represented by employees of legal entities in the cases of these legal entities, and state bodies in the cases of these state bodies and territorial divisions in accordance with subparagraph 2) the first part of Article 58 of the CPC. In the Council of Europe, representatives of the parties were more often their employees or representatives by proxy. For example, in the CFES of Pavlodar region, 62% of cases were represented by their employees or representatives by proxy in 35% of cases, with a small share of lawyers in 3% of cases. By virtue of the second part of Article 72 of the CPC, the burden of proof in cases arising from public law relations is placed on state authorities, local governments, public associations, organizations, officials and civil servants whose acts, actions (inaction) are being appealed (hereinafter referred to as state bodies). From the statistical data for 2016, it can be seen that 9457 cases of this category have been completed and 2115 cases have been terminated. Cases on applications for challenging acts, actions (inaction) of bailiffs occupy a specific weight – 3673/793; tax authorities – 1613/455; local executive authorities – 148/202. According to the courts of the regions, violations of Article 72 of the CPC were committed by representatives of state bodies and more often: by local governments, the Department of Justice, and bailiffs.

Representatives of state bodies did not ensure proper representation of state interests in the courts in the adversarial process, without presenting evidence and feedback on the claims made against them; showing obvious disrespect for the court, they evaded attendance at the court session, causing reasonable discontent among citizens related to the adjournment of cases. For example, during 2016, the courts of Astana city received 2,466 applications in accordance with Chapter 29 of the CPC on disputes arising from public law relations in which representatives of government agencies evaded court appearances. The cases were partly considered without their participation. In the case, in connection with S.'s statement to the Governor's Office and others on the recognition of the Akimat's resolution as illegal, the defendant's representative did not ensure proper representation of state interests in the courts, did not appear twice at the summons of the court, did not provide feedback. The case was considered by the court in the absence of the defendant's representative. A decision was made to satisfy the applicant's claims, which was left unchanged by the decision of the court of appeal. The defendant's representative also did not appear at the court of appeal hearing. The panel recognized the arguments of the appeal on the application of the limitation period as a procedural omission, since such a petition had not been filed with the court of first instance. In the case of the S.H.I.E.L.D. lawsuit. to GU and others, not all the defendants appeared at the court session and submitted a review. The claim of the Russian State University to JSC for compensation of damage was satisfied in part in the amount of 2,133,093 tenge, with the amount of the claim – 4,351,391 tenge. In violation of the first part of Article 72 of the CPC, the plaintiff did not provide evidence in support of the amount charged. The representative of the Russian State University refused to provide documents on the book value of the damaged weight arch, the cost of its restoration before the completion of work. This circumstance, by virtue of the first part of Article 73 of the CPC, was regarded by the court as a procedural omission by the plaintiff. In the courts of the East Kazakhstan region, there is a postponement of the trial of cases at the request of representatives of state bodies due to lack of preparation for the trial or to provide the court with documents that should have been submitted during the preparation of the case for trial. Similarly, the interests of the state were not properly represented in the courts of the regions, for example, in the following cases: according to the application of B. to the State Duma; according to the application of D. to the State Duma and others; according to the application of JSC to the State Duma for the recovery of the amount of the penalty; according to the application of M. to the State Duma and others for appealing the decision of the state body. The Taldykorgan city Court in the case of the claim of the State Duma against K., M. for debt collection issued a private ruling to the akim in relation to the State Duma in connection with the late provision of evidence. The SMES of the Karaganda region issued 54 private definitions, of which 12 private definitions were addressed to the state bodies of the Akimat and the Department of State Revenue. In the case, a private ruling was issued against the akimat for contempt of court following the application of LLP to GU and others for collecting the amount of debt and foreclosing on mortgaged property. The representatives of the defendants failed to appear in court on summons more than 6 times.

The court pointed out that according to the first part of Article 196 of the CPC, the persons participating in the case are obliged to notify the court in advance of the reasons for non-attendance at the court session and provide evidence of the validity of these reasons. Failure of the defendant's representative to appear at the court session without giving reasons is a sign of disrespect for the court and judicial authorities. A private ruling was issued to the RSU, which, having filed a claim for declaring the LLP bankrupt, did not ensure the appearance of the representative in court, did not provide the originals of the documents requested by the court. A private ruling on the fact of contempt of court by the defendants of GU 1 and GU 2 was addressed to the akimat with an indication of the failure to provide a response and repeated failure to attend the court session. As a result of the defendants' actions, the court extended the preparation of the case by one month. In the case of A.'s claim against the State Duma and others for invalidation of the akim's decision, state act, purchase and sale agreement, and cancellation of their registration, the court also limited itself to issuing a private ruling and brought to the attention of the akim of the region violations of the CPC rules in the implementation of representation. In the case of the claim of the State Duma against the sole proprietor for recognition as an unscrupulous participant in public procurement, the court issued a private ruling against the plaintiff in connection with the failure to appear at the court hearing on four summonses, the failure to present the original documents attached to the statement of claim, and the delay in the trial. The application was left without consideration. The Taldykorgan city Court issued a private ruling in the case in connection with the claim of M. to A. for the elimination of violations of ownership rights to the land and the counterclaim of A. to M. about the demolition of the building, in relation to the representative of the SES, about the unjustified non-appearance of the representative in court sessions. In the case of the claim of JSC to L., GU and others for the release of property from encumbrances, a private ruling was issued against the representative for failing to attend court sessions without valid reasons. The court issued a private ruling on the prosecutor's claim to the RSU, LLP on the cancellation of state re-registration to the prosecutor's office. By virtue of part five of Article 54 of the CPC, the prosecutor who filed the claim enjoys all procedural rights and also bears all the procedural duties of the plaintiff. However, the prosecutor, who was duly notified of the preparation of the case for trial, did not follow the instructions of the court and did not replace the improper defendant. The prosecutor fulfilled his duties at the trial stage, after repeated reminders from the court.

In individual cases, there is no information on the execution of private rulings and the suppression of violations, which indicates the formal approach of the courts to the suppression of abuse of rights. Making specific rulings more often did not have the expected result aimed at suppressing violations. On January 20, 2016, Court No. 2 of the Kazybekbiysky district issued a private ruling against the GU for improper performance of procedural duties in a civil case on B.'s application for recognition of S. as incompetent. The Prosecutor General, who was involved in the case in accordance with Article 326 of the CPC, did not ensure the appearance of his representative at the court session and the case was considered without his participation. There is no information in the case about the measures taken to review the private definition, as well as information about the appointment of a guardian, despite repeated reminders (the last reminder was dated March 18, 2016). By the decision of the Taraz City Court of April 29, 2016, the satisfaction of B.'s claims to compel the State Institution to cancel the registration of ownership of movable property was refused. The court granted the prosecutor's motion to issue a private ruling against the Prosecutor General for showing contempt of court and failing to appear at a court hearing on six summonses. There is no data on the execution of a particular ruling in the case. By the decision of the specialized interdistrict Economic Court of Kostanay region dated April 20, 2016, the claim of the State Institution to LLP for forcing to fulfill warranty obligations to eliminate defects in the roof of a completed house under a public procurement contract, recovery of penalties and court costs was refused.  By a decision of the judicial board for civil cases of the Kostanay Regional Court, the decision was overturned, and a new decision was made to satisfy the claim. The Board found that the defendant had improperly fulfilled his construction obligations. Representatives of the plaintiff GU did not appear at court sessions of the court of appeal twice without valid reasons, and they did not provide the additional evidence requested about the leak in the roof of the house.

The panel recognized the plaintiff's failure to comply with the requirements for presenting evidence as the basis for issuing a private ruling. The above has been brought to the attention of the State Administration. There is no data on the adoption of measures for a private definition in the case, no reminders of execution were sent. In connection with the failure to provide evidence in the case of the claim of the chairman of the NGO to E. for recognition as illegal and cancellation of the decision of the NGO, etc. The Semey City Court of the East Kazakhstan region issued a private ruling. This was brought to the attention of the city prosecutor. Information about the measures taken in the case has not been available since May 16, 2016. In the case of the claim of I. to Ch. and others on the recognition of sales contracts as invalid, the court issued a private ruling in connection with the failure to provide the court with the requested evidence – the legalization case. Information about the measures taken in the case has not been available since May 20, 2016. 

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