Comments on Article 6. Legality of the Civil Procedure Code of the Republic of Kazakhstan

1. When considering and resolving civil cases, the court must strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, the constitutional laws of the Republic of Kazakhstan, this Code, and other regulatory legal acts subject to the application of international treaties of the Republic of Kazakhstan.2. Courts shall not have the right to apply laws and other normative legal acts that infringe on the rights and freedoms of a person and citizen enshrined in the Constitution. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council of the Republic of Kazakhstan with a proposal to declare this act unconstitutional. Upon receipt by the court of the final decision of the Constitutional Council, the proceedings in the case are resumed.3. The court, having established, during the consideration and resolution of the case, the inconsistency of an act of a state or other body with the law or its publication with excess of authority, applies the norms of the law.4. In the absence of legal norms governing a disputed legal relationship, the court applies the legal norms governing similar relations, and in the absence of such norms, resolves the dispute based on the general principles and meaning of the legislation of the Republic of Kazakhstan.5. If the law or the agreement of the parties to the dispute provides for the resolution of relevant issues by the court, the court is obliged to resolve these issues based on the criteria of fairness and reasonableness.1. Legality is a state of society in which, firstly, there is high-quality, consistent legislation, and secondly, accepted legal norms are respected and enforced by authorities, officials, organizations, and citizens. Legality in the court's activities means the correct application of substantive and procedural law, and the conformity of acts passed by the court. and all the procedural actions performed by him according to the current legislation.The principle of legality is an interdisciplinary principle characteristic of any branch of law. However, in civil proceedings, this principle has its own content and system of guarantees.The principle of legality includes requirements for courts to correctly apply the norms of substantive (regulatory) law and perform procedural actions strictly guided by the requirements of the Constitution, constitutional laws, procedural law, other regulatory legal acts and applicable international treaties of the Republic of Kazakhstan.During the entire judicial proceedings in the case, the judge, regardless of any outside influences, independently examines the evidence provided., determines the applicable law and makes a decision based on the laws and regulations.2. In accordance with paragraph 1 of Article 76 of the Constitution, the judicial power has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic. When considering a civil case, the court has no right to apply laws and regulatory legal acts that infringe on the rights and freedoms of man and citizen, enshrined in the Constitution.The interaction of the judicial branch of government in Kazakhstan with the constitutional control body is based on the norms of the Constitution, relevant laws and is based on the principles of their independence and independence from each other, strict differentiation of competence. According to the Constitution, decisions of the Constitutional Council are generally binding, including for courts. Laws and other normative legal acts recognized as infringing on human and civil rights and freedoms enshrined in the Constitution are repealed and are not subject to application.In accordance with article 78 of the Constitution, the courts are required not to apply laws and other normative legal acts that infringe on human and civil rights and freedoms enshrined in the Constitution. If there is a contradiction, the courts are obliged to suspend the proceedings and apply to the Constitutional Council with a proposal to declare such an act unconstitutional. Following from the content of the requirements of the Basic Law, there is every reason to believe that the judicial branch of government, along with reviewing traditional criminal, civil and administrative cases, monitors the constitutional and legal content of regulatory legal acts.Consequently, one of the mechanisms for the approval of constitutional legality and the execution of decisions of the Constitutional Council are the courts, which do not apply unconstitutional legal acts in resolving specific cases. So, if the court considering a civil case considers that a law or other normative legal act to be applied in this case infringes on the rights of a participant in the process enshrined in the Constitution, then by virtue of subparagraph 5) of Article 272 of the CPC, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional.. Such an appeal may be made by a court of any instance at all stages of the case consideration. In this case, the court issues a reasoned ruling or resolution on the suspension of proceedings in the case and draws up an appeal to the Constitutional Council in the form of a separate document.When initiating submissions to the Constitutional Council, the courts are guided by the following legal requirements: 

1) the submission is signed by the chairman of the relevant court, from which the initiative originates, since in accordance with paragraph 3 of Article 23 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan", a judge alone, on his own behalf, cannot submit a submission to the Constitutional Council; 2) the subject of the submission of the courts of the Republic are laws or other normative legal acts as a result of the application of which the constitutional rights and freedoms of man and citizen may be infringed; 3) the submission is based on the materials of the case in court proceedings., the consideration of which is suspended at the time of the appeal to the Constitutional Council in accordance with Article 78 of the Constitution and subparagraph 3) of Article 23 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan".An example of such a case is the appeal of the Astana City Court to recognize paragraph 3 of Article 15 of the Law "On Notaries" as contrary to the Constitution. This clause established that private notaries were certified every five years, which did not apply to public notaries, violating the constitutional provision on the equality of all before the law and the court. Having considered the court's appeal, the Constitutional Council recognized the specified paragraph of the law as contrary to the Constitution. Thus, by recognizing a law or certain of its provisions as unconstitutional, the Constitutional Council "removes" it from the system of current law, and the courts do not apply these provisions.3. In accordance with the Constitution and paragraph 1 of Article 10 of the Law "On Legal Acts", the Constitution has the highest legal force. This is of great importance for the protection of human rights and freedoms, as the norms of the Constitution have direct effect. According to this provision, all constitutional norms have supremacy over other laws and regulations. Any regulatory act, any action (or omission) of a government body or its official must comply with the Constitution, its norms and principles. Courts should actively apply articles of the Constitution in the presence of a law or other normative legal act that contradicts them, when this inconsistency is obvious and beyond any doubt.The Law "On Legal Acts" establishes a hierarchy of normative legal acts depending on the ratio of their legal force. Outside of this hierarchy are the normative decisions of the Constitutional Council and the Supreme Court. Each of the regulatory legal acts of the lower level should not contradict the regulatory legal acts of the higher levels. If there are contradictions in the norms of regulations of different levels, the norms of a higher-level act apply. The norms of laws in cases of their discrepancy with the norms of the codes of the Republic of Kazakhstan may be applied only after making appropriate amendments to the codes. If there are contradictions in the norms of normative legal acts of the same level, the norms of the act, which were put into effect later, apply.For example, the Supreme Court considered a civil case on A.'s claim against the State Institution "Department of the Ministry of Labor and Social Protection of the Population" (hereinafter referred to as the Department) on the establishment of work experience in public service, recovery of unpaid wages and expenses for the services of a representative, received on A.'s complaint. on the decision of the court of first instance.In the complaint, the plaintiff asked to cancel the judicial act that took place in the case and make a new decision on the satisfaction of the claims.In accordance with subparagraph 8) of paragraph 27 of the Presidential Decree "On Approval Regulations on the procedure for civil service" for calculating the length of public service, which gives the right to set an official salary, the time of the last place of work in senior positions, in positions in specialties identical to the specialties of civil service in government organizations, is included.

In rejecting the claim, the courts pointed out that when calculating the length of public service, which gives the right to set an official salary, only the last place of work is included. The plaintiff's claims for inclusion in the length of public service of working time in the tuberculosis dispensary of the central district hospital were found to be contrary to the law, since this place of work is the penultimate, not the last.The Supreme Court recognized this interpretation of the regulatory legal act as erroneous, since the words "last place of work" refer only to work in senior positions, but not to identical positions, therefore, the time spent in all identical positions should be included in the length of public service. This interpretation of subparagraph 8) of paragraph 27 of the Decree is caused by the fact that the legislator uses the words "in positions" and "in state organizations" in the plural. Therefore, we are referring to several places of work, and not the only one, the last one.One of the most important principles of civil legislation is the principle of full protection of the rights and interests of citizens. The Board considered that a different interpretation of the disputed norm does not comply with the specified principle of civil legislation.In this regard, the decision of the court of first instance was overturned by the Supreme Court, a new decision was made to satisfy the claim, and the length of public service was included in the length of work in the tuberculosis dispensary of the central district hospital.________________1 Archive of the Supreme Court, NP No. 4 gp-82-07.

4. Civil procedure legislation allows the application of the analogy of law and the analogy of law.An analogy, as defined in the Dictionary of the Russian Language, edited by S.I. Ozhegov, is a similarity in some respect between phenomena, objects, and concepts. The principle of analogy in law is the possibility of extending the norms of substantive or procedural law to regulate public relations that are in the sphere of "legal gaps", that is, not regulated by specific legislative acts. If in civil law relations, in cases where the situation is not directly regulated by law, it is allowed to apply the norm of civil law governing similar relations, then this is unacceptable in criminal law. This is based on the fact that the public danger of acts punishable under criminal law must be explicitly established in a law passed by Parliament. The absence of a law that makes it possible to classify the committed act as a criminal one entails the refusal to prosecute the person. Such a rule is an additional guarantee for the protection of citizens' rights from unjustified application of criminal liability measures.In civil law, the use of analogy is allowed only as an extreme measure to fill in the gaps of the law, if such a gap cannot be filled in another way, for example, by explanations given in the normative decisions of the Supreme Court.By analogy with the law, filling its gap is achieved by applying a specific legislative norm that directly regulates other laws., but a similar relationship.The analogy of law or the analogy of law as a way of filling gaps in civil procedural legislation is not widespread, therefore, the application of analogy and the correct adoption of subsequent procedural decisions are possible only on the basis of the principles of civil procedural law.5. According to Article 6 of the Civil Code, if there is a possibility of different understanding of the words used in the text of legislative norms, preference is given to an understanding that meets the provisions of the Constitution and the basic principles of civil legislation. In resolving these issues, the court is guided by the criteria of fairness and reasonableness.

The court is obligated to resolve the dispute if the law or the agreement of the parties provides for the resolution of the dispute by the appropriate court.The criteria of reasonableness and fairness were introduced by the legislator to limit the law enforcement officer and prevent abuse of his right. Being essentially subjective, the categories of "justice" and "reasonableness" set objective boundaries for the application and interpretation of the norms of civil procedural law.

Additional comment1. The courts are required to strictly comply with the Constitution, constitutional laws, the CPC, other regulatory legal acts, as well as international treaties subject to application.2. The norms of paragraph 1 of Article 1 of the Constitution are implemented, proclaiming that the Republic of Kazakhstan asserts itself as a democratic, secular state, the highest values of which are man, his life, rights and freedoms. The provisions are consistent with article 2 of the CPC, which establishes the priority of legal norms in civil proceedings.

"Judges are also required to respect the rule of law, meaning that decisions made must comply with the law, which includes the principles of fairness, integrity, and impartiality (an ethical framework).

Justice is a universal norm that regulates a certain set of facts and circumstances that are treated equally for everyone."2__________________2 An expert opinion on the draft CPC by German expert Lutz Divell. s

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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