Comments on article 197. Consequences of failure to appear at a court hearing of a witness, expert, specialist, translator of the Civil Procedure Code of the Republic of Kazakhstan
If a witness, expert or specialist fails to appear at the court session, the court hears the opinion of the persons participating in the case on the possibility of considering the case in their absence and issues a ruling on the continuation of the trial or its postponement.
2. If the interpreter fails to appear at the court session, the court issues a ruling on postponing the hearing of the case if it is impossible to replace the interpreter.
3. If a witness, expert, specialist or translator did not appear at the court session for reasons deemed disrespectful by the court, they may be held administratively liable for showing contempt of court in accordance with the procedure provided for in Articles 119 and 120 of this Code.
1. When deciding on the possibility of considering a case in the absence of witnesses who did not appear, the court, taking into account the opinions of the persons involved in the case and the conclusion of the prosecutor, should proceed from the importance of their testimony for the proper resolution of the case. The court may proceed from whether other witnesses can report the fact in support of which the witness who did not appear was called, and whether it is possible to ensure his appearance at the court hearing.If the expert fails to appear at the court session, the opinion of the persons involved in the case and the prosecutor's opinion on the possibility of considering the case in his absence are also heard. The completeness and validity of the expert's written opinion are discussed, as well as the need for his personal explanations on issues related to special knowledge in this field.Similarly, the court should, taking into account the opinions of the persons involved in the case, assess the possibility of considering the case without consulting and explaining a specialist. If the specialist has submitted his explanation or consultation in writing, it will be sufficient to announce the consultations and explanations of the specialist in the courtroom.In general, depending on the results of the discussion of the consequences of the failure of witnesses or experts to appear at the court session, the court issues a ruling on the continuation of the trial or on the postponement of the trial. In this case, one should be guided by the norm of the third part of Article 268 of the CPC, which allows the court to issue a ruling without leaving the courtroom. Such a determination must be recorded in the minutes of the court session.The persons involved in the case must actively express their opinion related to the consent or disagreement of the consideration of the case without the participation of a witness, specialist, expert.The expression of an opinion on this matter by a person participating in the case should be considered as another manifestation of adversarial behavior in civil proceedings. Interviewing a witness, receiving explanations from an expert or specialist will directly affect the implementation of the burden of proof by the relevant party to the process. Therefore, the court must take into account the rights and legitimate interests of the relevant persons involved in the case when resolving the issue of postponing the trial.
2. The failure of an interpreter to appear entails the threat of a serious violation of the procedural rights of a participant in the proceedings who does not understand the language of the proceedings. In general, this will significantly affect the observance of the legality of the proceedings, since the absence of an interpreter at the court session will be a violation of the principle of the language of the proceedings (Article 14 of the CPC).The failure of an interpreter to appear for the above reasons does not allow for an alternative in resolving the issue of adjournment of the case. As a result, if it is impossible to promptly replace the interpreter, the court is obliged to issue a ruling on postponing the trial of the case.
In this regard, the issue of the possibility of considering the case at a court hearing is resolved differentially, taking into account the prevailing circumstances and the procedural situation of the person.
3. The court may find out the reasons for the non-appearance of a witness, expert, specialist or interpreter at the court session. If the reasons for non-appearance are found to be disrespectful by the court, the listed persons may be brought to administrative responsibility in accordance with the procedure provided for in Articles 119, 120 of the CPC.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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