Comments on Article 19. Publicity of judicial proceedings of the Civil Procedure Code of the Republic of Kazakhstan
The hearing of civil cases in all judicial instances is open. Judicial acts are announced publicly.
2. In a closed court session, cases are considered and resolved in accordance with the law, including the announcement of decisions containing information that are state secrets.At the request of a person participating in the case, a civil case may be considered and resolved in a closed court session if it is necessary to ensure the secrecy of the adoption, the inviolability of private life, the preservation of personal, family, commercial or other legally protected secrets, or if there are other circumstances preventing open proceedings, as well as in the case of, provided for in part four of Article 188 of this Code.
3. Personal correspondence and other personal communications may be disclosed in open court only with the consent of the persons between whom this correspondence took place and to whom these personal communications relate. In the absence of such consent, correspondence and messages are announced and examined in a closed court session.These rules also apply to the study of audio, video recordings, photographic and film recordings and other materials on electronic, digital and other material media containing personal information.
4. During the hearing of a case in a closed court session, the persons participating in the case, their representatives, and, if necessary, witnesses, experts, specialists, and translators are present, who are warned by the court about responsibility for disclosing the information specified in part two of this article.
5. Citizens under the age of sixteen are not allowed in the courtroom unless they are persons participating in the case or witnesses.
6. Proceedings in a closed court session shall be conducted in compliance with all the rules established by this Code.
7. Persons participating in the case and other persons, including representatives of the mass media, present at an open court hearing, have the right to take notes during the court session, record it using audio recordings and digital media from their seats in the courtroom. Film and photography, video recording, live radio and television broadcasting, and video broadcasting on the information and communication network Internet are allowed in the courtroom with the permission of the court and taking into account the opinions of the persons involved in the case. This is indicated in the court ruling, which is recorded in the minutes of the court session. These actions should not interfere with the normal course of the court session and may be limited in time by the court.
8. The court shall issue a ruling on the hearing of a case in a closed court session in respect of all or part of the trial, which shall be recorded in the minutes of the court session.
9. Judicial acts that have entered into legal force shall be published on the court's Internet resource and may be publicly discussed subject to the restrictions established by part two of this article and other laws.
10. Information about appeals received by the court in civil cases pending before the court shall be made public and brought to the attention of the participants in the process by posting this information on the official Internet resource of the court.
1. The principle of publicity of judicial proceedings means that the hearing of civil cases in all courts is carried out openly with free access to the courtroom for all interested citizens, with the exception of citizens under the age of sixteen, if they are not persons participating in the case or witnesses.
Citizens can be present at any stage of the civil process.: in the court of first instance, appeal, cassation instances, when reviewing a judicial act due to newly discovered or new circumstances.The Supreme Court's regulatory Decision No. 5 of October 28, 2005 "On compliance with the principle of transparency of judicial proceedings in civil cases" clarifies that transparency of judicial proceedings is not only the conduct of an open trial of a case, but also openness, transparency and accessibility of judicial procedures. This is manifested in the public announcement of the court decision, familiarization of the parties with the complaints received from other participants in the process, notification of the time and place of consideration of the case in a higher court, free access to the database of decisions that have entered into force, and the possibility of obtaining information on the execution of judicial acts.
On the one hand, the principle of transparency asserts the openness of judicial procedures, and on the other hand, when considering specific cases, a ban is imposed on the public announcement of a judicial act. Thus, in the cases mentioned in the second part of the commented article, the announcement of the court decision is carried out behind closed doors.
According to article 6 of the European Convention on Human Rights, "a court decision is announced publicly. However, the press and the public may not be allowed to attend court sessions during the entire process or part of it for reasons of morality, public order or national security in a democratic society, as well as when required by the interests of minors or to protect the privacy of the parties, or - to the extent that, in the opinion of the court, it is strictly necessary - under special circumstances, when publicity would violate the interests of justice"
________________10 The European Convention on Human Rights, as amended and supplemented by Protocols No. 11, 14, accompanied by Additional Protocol and Protocols No. 4, 6, 7, 12 and 13.2.
A closed court session is held in cases explicitly specified in the law. Thus, when considering cases containing information that are state secrets, a closed court session is held. The list of information classified as state secrets is given in the Law "On State Secrets".
Cases of child adoption are considered in a closed court session by virtue of Article 314 of the CPC. Cases related to the preservation of personal, family, commercial or other protected secrets, information about intimate aspects of citizens' lives or other circumstances may be considered in a closed court session at the request of the person involved in the case. For example, one respondent party in a divorce case does not want information about his illness, which led to the dissolution of the marriage, to be disclosed. When considering such a petition, the court is obliged to issue a ruling indicating the reasons and motives for considering the case in a closed court session or for dismissing the petition.
Citizens, including a person involved in the case, may be removed from the courtroom during an open trial for repeated violations of the order. In case of a massive violation of order, all citizens can be removed from the courtroom, the case is then considered in a closed court session, which is provided for in part four of Article 188 of the CPC.
3. In an open court session, personal correspondence and personal telegraphic messages of citizens may be disclosed with the consent of the persons between whom these correspondence and telegraphic messages took place. The rule should also apply to the study of photographic and film documents, sound and video recordings, as well as messages received by other technical means containing personal information.
If the persons whose interests are affected by correspondence and telegraphic messages do not consent to their disclosure and investigation, then these actions are performed in a closed court session. In this regard, the court is obliged to make a ruling. It will not be a violation of the requirements of the CPC and making a decision without being removed to the conference room (protocol definition), if the resolution of the petition is not difficult.
4. The hearing of cases in closed court sessions is conducted in compliance with the rules of civil procedure, the presence of persons participating in the case, their representatives, and, if necessary, witnesses, experts, specialists, and interpreters is permitted. When allowing representatives of persons participating in the case to participate, the court is guided by articles 57, 58 and 59 of the CPC.
5. During the hearing of the case, citizens under the age of sixteen are not allowed in the court session. The age of the persons who appeared at the court session is determined by the documents establishing their identity. If such persons are persons participating in the case or witnesses, then their admission to the courtroom is decided by the court. At the same time, after explanations are given by persons under the age of sixteen who are parties to the case, they may be removed from the courtroom, provided that the interests of such a person are represented by his representatives in the proceedings.
6. The trial of a case in a closed court session is conducted in compliance with the rules of civil procedure, which means strict compliance with the requirements governing the trial (Chapter 18 of the CPC). There is a question about the written record of the court's actions when considering a case in a closed court session by the persons participating in the case. It seems that the persons involved in the case (Article 43 of the CPC) have the right to keep the necessary records of the case in their own interests and use the records during certain stages of the process in the same case.
7. The level of openness and transparency of legal proceedings is increasing, taking into account the use of modern recording technologies.
In an open court session, those present have the right to personally perceive everything that happens in the courtroom. This provision allows persons participating in the case and other persons, including representatives of the media present at an open court hearing, to take written notes during the court session, take shorthand notes during the court session, and record it using audio recordings and digital media from their seats in the courtroom.
It is necessary to inform the court about the use of audio recording and digital media during the trial, and to record openly.
The course of the trial is also recorded by the court using audio and video recordings, which are announced by the presiding judge at the opening of the court session in accordance with part one of Article 189 of the CPC.Persons who record using means of fixation should take into account the provisions of part five of Article 282 of the CPC. By virtue of this rule, audio and video recordings of court sessions are used only for the purposes of legal proceedings to accurately record the course of the trial, as well as to establish factual data in civil, criminal proceedings, proceedings on administrative offenses or in the framework of disciplinary proceedings.
Filming, photographing, and videotaping, as well as live radio and television broadcasts of the trial, are allowed only with the permission of the presiding judge. Before making a decision on this, the court, as a rule, must find out the opinion of the participants in the process.
This situation is explained by the fact that filming, photographing, broadcasting the trial on radio or television can interfere with the normal course of the trial, often the parties do not want the details of the case to be made public, etc. The court may impose time restrictions on the production of films, photographs, and videos.
8. The court issues a ruling on the hearing of the case in a closed court session, which is recorded in the minutes of the court session. The restriction of the publicity of the trial may extend to the entire period of the court session or to a part, therefore, this should be indicated in the court ruling.
Recording of the process in a closed court session using audio and video recordings is carried out in accordance with Articles 189, 282 of the CPC, as well as in accordance with the procedure determined by the body responsible for the organizational and logistical support of the courts.
Court rulings on the limitation of the publicity of judicial proceedings, as a rule, must be adopted on the spot and recorded in the minutes of the court session. However, it is not excluded that a reasoned ruling may be made on certain complex issues and sent to a conference room, which should be recorded in the minutes. Court rulings on the limitation of the publicity of judicial proceedings are not subject to separate appeal, but the objections of the parties to these rulings may be included in an appeal or protest filed against a court decision rendered on the merits of the case.
9. Judicial acts that have entered into legal force shall be published on the court's Internet resource and may be publicly discussed, subject to the restrictions established by Part two of this Article and other laws, such as "On State Secrets", "On Personal Data and their Protection" and others.
10. Information about appeals received by the court in civil cases pending before the court shall be made public and brought to the attention of the participants in the process by posting this information on the official Internet resource of the court.
Such provisions are consistent with the principle of judicial independence, regulated by Article 12 of the CPC, stating that a judge in the administration of justice is independent and obeys only the Constitution of the Republic of Kazakhstan and the law and are aimed at crossing illegal appeals in order to obtain a positive result in the case.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
The course of the trial is also recorded by the court using audio and video recordings, which are announced by the presiding judge at the opening of the court session in accordance with part one of Article 189 of the CPC.Persons who record using means of fixation should take into account the provisions of part five of Article 282 of the CPC. By virtue of this rule, audio and video recordings of court sessions are used only for the purposes of legal proceedings to accurately record the course of the trial, as well as to establish factual data in civil, criminal proceedings, proceedings on administrative offenses or in the framework of disciplinary proceedings.
Filming, photographing, and videotaping, as well as live radio and television broadcasts of the trial, are allowed only with the permission of the presiding judge. Before making a decision on this, the court, as a rule, must find out the opinion of the participants in the process.
This situation is explained by the fact that filming, photographing, broadcasting the trial on radio or television can interfere with the normal course of the trial, often the parties do not want the details of the case to be made public, etc. The court may impose time restrictions on the production of films, photographs, and videos.
8. The court issues a ruling on the hearing of the case in a closed court session, which is recorded in the minutes of the court session. The restriction of the publicity of the trial may extend to the entire period of the court session or to a part, therefore, this should be indicated in the court ruling.
Recording of the process in a closed court session using audio and video recordings is carried out in accordance with Articles 189, 282 of the CPC, as well as in accordance with the procedure determined by the body responsible for the organizational and logistical support of the courts.
Court rulings on the limitation of the publicity of judicial proceedings, as a rule, must be adopted on the spot and recorded in the minutes of the court session. However, it is not excluded that a reasoned ruling may be made on certain complex issues and sent to a conference room, which should be recorded in the minutes. Court rulings on the limitation of the publicity of judicial proceedings are not subject to separate appeal, but the objections of the parties to these rulings may be included in an appeal or protest filed against a court decision rendered on the merits of the case.
9. Judicial acts that have entered into legal force shall be published on the court's Internet resource and may be publicly discussed, subject to the restrictions established by Part two of this Article and other laws, such as "On State Secrets", "On Personal Data and their Protection" and others.
10. Information about appeals received by the court in civil cases pending before the court shall be made public and brought to the attention of the participants in the process by posting this information on the official Internet resource of the court.
Such provisions are consistent with the principle of judicial independence, regulated by Article 12 of the CPC, stating that a judge in the administration of justice is independent and obeys only the Constitution of the Republic of Kazakhstan and the law and are aimed at crossing illegal appeals in order to obtain a positive result in the case.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
Comments on article Civil Procedure Code Civil Code Criminal Procedure Code Criminal Code Normative Resolution of the Supreme Court Criminal legislation Normative legal acts of the Republic of Kazakhstan
