Comments on article 54. Participation of the prosecutor in civil proceedings of the Civil Procedure Code of the Republic of Kazakhstan

1. Supreme supervision over the accurate and uniform application of laws in civil proceedings on behalf of the State is carried out by the Prosecutor General of the Republic of Kazakhstan both directly and through subordinate prosecutors.2. The prosecutor has the right to enter into the process in order to give an opinion on the case in order to carry out the duties assigned to him by law.The participation of a prosecutor in civil proceedings is mandatory in cases affecting the interests of the state, when it is necessary to protect public interests or citizens who cannot defend themselves on their own., and also when the need for the prosecutor's participation is recognized by the court or the prosecutor.The specified powers of the prosecutor are ensured by timely notification by the court of all cases assigned for consideration by posting relevant information on the court's Internet resource.3. The prosecutor has the right to apply to the court with a claim, an application for the protection of the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of legal entities, public or state interests. A claim for the protection of labor, housing and other rights and freedoms of an unlimited number of persons in the social sphere, as well as in defense of the interests of an incapacitated citizen, may be filed by a prosecutor regardless of the request and application of the person concerned.4. If the plaintiff does not support the claim made by the prosecutor, the court reserves the claim (application). without consideration, if the rights, freedoms and legitimate interests of third parties are not affected.5. The prosecutor who filed the claim enjoys all the procedural rights and also bears all the procedural duties of the plaintiff, except for the right to conclude a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation and an agreement on the settlement of a dispute through a participatory procedure. The prosecutor's refusal to file a claim (application) in defense of another person's interests does not deprive that person of the right to demand consideration of the case on its merits after payment of the state fee in accordance with the requirements of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code).6. A prosecutor who represents the interests of the prosecutor's office in a dispute being considered by the court as a plaintiff or defendant shall enjoy the procedural rights and obligations of a party.1. The CPC establishes the following independent forms of prosecutor's participation in the process: applying to the court in order to protect the rights and interests of citizens who cannot defend themselves on their own, public interests or the state.; entering into the process in order to give an opinion on certain categories of cases; when the need for the prosecutor's participation is recognized by the court or the prosecutor.When applying to the court in order to protect the rights and interests of citizens, the prosecutor's statement should indicate the reason why the citizen himself cannot file a claim.This category includes citizens who, for health reasons, age, disability, and other valid reasons, cannot go to court themselves.The necessary conditions for the prosecutor's appeal to the court are the following: The category of the case must fall under the grounds specified in the second part of Article 45 of the CPC.; There is an appeal to the prosecutor from citizens whose rights have been violated.2. As a general rule, a prosecutor's appeal to the court is his right, but there are a number of exceptions when resolving a dispute without involving a prosecutor in the process is unacceptable, namely cases of public interest: deprivation of parental rights, adoption of a child, invalidation of a regulatory legal act, etc.Participating in the civil process, The prosecutor has a certain procedural status and does not replace the plaintiff.The powers of the prosecutor are ensured by timely notification by the court of all cases assigned for consideration by posting relevant information on the court's Internet resource.If the plaintiff does not support the claim made by the prosecutor, the court reserves the claim (statement). without consideration, if the rights, freedoms and legitimate interests of third parties are not affected. 

3. The prosecutor who filed the claim enjoys all the procedural rights and also bears all the procedural duties of the plaintiff, except for the right to conclude a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation and an agreement on the settlement of a dispute through a participatory procedure.When applying to the court with a corresponding application, the prosecutor is relieved of the obligation to pay the state fee.The prosecutor's refusal from a claim (statement) filed in defense of the interests of another person, does not deprive this person of the right to demand consideration of the case on the merits after payment of the state fee in accordance with the requirements of tax legislation.Giving an opinion on the case by the prosecutor is possible only in cases expressly provided for by law. The prosecutor has no right to give an opinion on the case in which he is a party. The prosecutor's opinion should be based on the law applicable to the dispute being considered in court, taking into account all the circumstances of the case.The failure of the prosecutor, who has been notified of the place and time of the hearing of the case, is not an obstacle to the hearing of the case.Additional comment The Prosecutor's Office, which is an integral part of the State system for the protection of the constitutional order, human and civil rights and freedoms, exercises supreme supervision over the accurate and uniform application of laws, decrees of the President of the Republic of Kazakhstan and other normative acts on the territory of the Republic (paragraph 1 of Article 83 of the Constitution). In order to eliminate any violations of the rule of law, it takes measures within its competence established by law (paragraphs 1 and 4 of article 83 of the Constitution, Resolution of the Constitutional Council of August 5, 2002 No. 5).In accordance with Resolution No. 3 of the Constitutional Council of March 6, 1997, not only citizens participate in the process, but also officials who, in fulfilling their professional duties, represent the interests of the parties or third parties. One of these officials is the prosecutor, who represents the interests of the State in court. The procedural rights of the prosecutor, as one of the parties and the representative of the State in court, are vested in the current legislation adopted on the basis of the Constitution. Therefore, the constitutional norm on equality of all before the law and the court, stipulated in paragraph 1 of article 14, should not be understood as equality of the parties to the judicial process, including the prosecutor, as a representative of the State in court.Supreme supervision in the civil process can be conditionally divided into three components: participation in the consideration of civil cases; bringing a protest; filing a claim.1. The prosecutor shall give a legal opinion on the merits of the dispute. The judge is not connected with the prosecutor's opinion and makes a decision independently. The Prosecutor's Office does not interfere in private disputes. At the same time, in some cases, at first glance, a purely private dispute may eventually affect the interests of the state, the rights of a significant number of citizens, and public interests. The prosecutor's involvement in these civil cases is mandatory.The following cases have been identified in which the prosecutor is required to participate if: there are interests of the state; one of the parties is a person who is unable to defend his rights on his own; protection of public interests is required; there is an initiative from the prosecutor or the court.As part of the implementation of the 26th step of the National Plan, the mandatory participation of the prosecutor in the following categories of civil cases is excluded: eviction of a citizen from his home without providing other housing; recovery of wages and reinstatement at work; compensation for damage not related to an industrial accident.

2. Paragraph 1 of article 83 of the Constitution establishes that the Prosecutor's Office challenges laws and other legal acts that contradict the Constitution and the laws of the Republic. This means that the specified authority of the prosecutor's Office includes the right to appeal decisions, verdicts, and other court decisions (Resolution No. 3 of the Constitutional Council of March 6, 1997).The prosecutor may, through a protest, inform a higher court about a judicial error. The dispute is finally resolved only by the court, which has the right to agree with the arguments of the protest or not. In other words, the protest is not binding on the court and can be rejected.3. Filing a claim is possible in the interests of the State, society, or individuals who cannot defend their rights on their own, which is consistent with article 23 of the Law "On the Prosecutor's Office."The right to file lawsuits in the interests of specific entities is regulated, along with clearly defined areas of legal relations (labor, housing, etc.), where filing a separate petition or complaint by an interested person is not required for a prosecutor to file a claim.The mechanism for approving and filing lawsuits by prosecutors in the interests of business entities is fixed at the subordinate level.Procedural capabilities of the prosecutor - A representative of the prosecutor's office (a plaintiff or a defendant, for example, in a dispute over public procurement, the protection of business reputation, or challenging an act of supervision) is not equal to the rights and duties of a prosecutor who sues in the interests of a citizen, organization, state, and society.A prosecutor acting in the "foreign" interest, unlike a representative of the prosecutor's office, is limited in the right to conclude a settlement agreement, dismiss a claim, and other actions that terminate or create new responsibilities for the represented party.

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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