Comments on article 65. Admissibility of evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Evidence is recognized by the court as admissible if it is obtained in accordance with the procedure provided for by this Code.2. Audio and video recordings, including those obtained by surveillance and/or recording devices, photographic and/or film recordings, and other materials on electronic, digital and other material media may be recognized as acceptable evidence.3. The circumstances of the case, which by law must be supported by certain evidence, cannot be supported by any other evidence.This article defines the general and special requirements for the admissibility of evidence.The legal basis for the rule of admissibility of evidence is the constitutional principle of justice that evidence obtained by illegal means has no legal force (subparagraph 9) of paragraph 3 of Article 77 of the Constitution).The admissibility of evidence is a prerequisite for making an informed decision., in which significant facts are confirmed by evidence (paragraph 5 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On judicial decision"), 1. The admissibility of evidence in the legal literature is understood as the suitability of a given source of evidence recognized by the legislator to serve as a means of procedural proof, either as a set of conditions provided by law for the performance of procedural actions, their sequence, the procedure for fixing and formalizing procedural actions, procedural deadlines, or a rule by virtue of which the court may use only types of evidence provided by law, or as a certain, a restriction on the use of evidentiary means in the resolution of specific cases established in advance by law._________________27 Gromov H.A. Criterion for the use of evidence and the results of the ORDO in proving a criminal case/H.A. Gromov, Yu.V. Franciforoe, V.Yu. Alferov// Investigator.- 2000. - No. 1. - p.9; Kipnis N.M. The admissibility of evidence in criminal proceedings //M., 1995. P.5.
1.1. The admissibility of evidence is determined by law in various ways:- the establishment of general requirements for compliance with the procedural form of evidence: in all cases, regardless of their category, the requirement to obtain information from legally defined means of proof must be observed in compliance with the procedure for collecting, presenting and examining evidence. Violation of these requirements leads to the inadmissibility of evidence. The general requirements for the admissibility of evidence are established by the first part of Article 65 of the CPC;- the establishment of special rules prescribing the use of certain evidence to establish the circumstances of the case (positive admissibility). Such a special nature of admissibility is established by part three of Article 65 of the CPC;- the establishment of special rules prohibiting the use of certain information as admissible evidence (negative admissibility). The prohibition on using information about facts as admissible evidence is established by Article 66 of the CPC.The following criteria for the admissibility of evidence are highlighted in the legal literature in relation to criminal proceedings:- the proper subject of proof;- an appropriate source of evidence;- an appropriate method of collecting evidence; - an appropriate procedure for conducting and executing a procedural action____________________28 Zazhitsky V.I. Sources of awareness in criminal procedural evidence /V.I. Zazhitsky// Soviet justice. - 1983.- No. 8. - p.6.
These criteria are applied to varying degrees in civil proceedings when determining the admissibility of evidence, including when establishing negative admissibility (part one of Article 66 of the CPC).1.2. The general requirement for the admissibility of evidence is to obtain it in the manner prescribed by the CPC.The norms of the CPC provide for a certain procedure for obtaining the following evidence: giving oral and written explanations of the parties and third parties (Article 202 of the CPC); giving testimony by witnesses (Articles 203, 204, 206, 207 of the CPC); conducting an expert examination (Articles 82, 87 of the CPC); preparation of court session protocols (Articles 282, 283 of the CPC), audio or video recordings (Articles 282, 283 of the CPC); data obtained by performing procedural actions (Articles 74, 96, 97 of the CPC, etc.), etc. All evidence is examined by the court directly at the court session (Article 186 of the CPC).1.3. The admissibility of evidence is recognized by the court. The persons participating in the case have the right to present evidence as admissible and to challenge the admissibility of evidence presented by other persons participating in the case.The issue of the admissibility of evidence is also checked by the court in the case of a statement by a person participating in the case of the existence of circumstances of the inadmissibility of evidence (Article 66 of the CPC).2. The second part of this article specifies the types of acceptable evidence obtained through the use of scientific and technical means: audio and (or) video recordings, including those obtained by surveillance and (or) fixation devices, photo materials- and (or) filming, other materials on electronic, digital and other material media.This list of types of admissible evidence is open and, as new technologies develop and are introduced into civil proceedings, it allows for the possibility of using as evidence materials obtained on other material media not explicitly specified in the law.These records and materials may be recognized by the court as admissible evidence, unless the law explicitly prohibits their use. For example, in order to recognize as acceptable evidence an audio recording obtained during a secret investigative action, it is necessary to comply with the conditions and grounds provided for in articles 232, 242 of the CPC. Violation of the established procedure entails exclusion of the audio recording from the list of acceptable evidence.In order to recognize the evidence referred to in this article as admissible, it is also necessary to comply with the requirements for the procedure for presenting it to the court or obtaining it with the assistance of the court in accordance with the second part of Article 99 of the CPC.3. Part three of this article establishes special requirements for the admissibility of evidence, when in some cases the law explicitly provides for certain means of proof that can be used to confirm circumstances (positive admissibility)..3.1. Thus, paragraph 1 of Article 152 of the Civil Code provides for the obligation to conclude a number of transactions in writing. Failure to comply with the simple written form of the transaction does not invalidate it, but deprives the parties of the right, in the event of a dispute, to confirm its commission, content or execution by testimony. The parties, however, have the right to confirm the commission, content or execution of the transaction with written or other evidence other than witness testimony (paragraph 1 of Article 153 of the Civil Code).
For example, other evidence may include materials from the pre-trial investigation, including testimony from a person about the circumstances of the transaction recorded in the protocol of the suspect's interrogation. Recognition of the debt by the debtor or a request for postponement of debt payment can be expressed in a message sent via SMS, etc.However, according to paragraph 2 of Article 724 of the Civil Code, in cases where a loan agreement must be concluded in writing, it is allowed to challenge it by testimony when the agreement was concluded under the influence of deception, violence, threats, malicious agreement of representatives of the parties or a combination of difficult circumstances (paragraphs 9, 10 of Article 159 of the Civil Code). Witness statements regarding the circumstances of the transaction are permissible when challenging the validity of the transaction (Articles 159, 160 of the Civil Code).The norms of substantive law also provide for what evidence can be used to confirm the fact that the debtor has fulfilled the obligation. For example, paragraphs 1, 2 of Article 290 of the Civil Code provide for ways to certify the fulfillment of obligations.3.2. For some transactions, the law establishes a mandatory notarial form of their execution, failure to comply with this form entails the invalidity of the transaction. In such cases, the fact of the transaction is confirmed only by the notarized text of the document, which cannot be replaced by other evidence, including written evidence.Thus, a power of attorney for the management of property and for transactions requiring notarization must be executed in written notarized form, as well as a power of attorney under which the attorney transfers authority to another person (paragraph 2 of Article 167, paragraph 2 of Article 169 of the Civil Code); assignment of a claim based on a transaction made in written notarized form (paragraph 1 of Article 346 of the Civil Code); an annuity agreement (Article 518 of the Civil Code), a will (Article 1050 of the Civil Code); an agreement on the division of the spouses' common property, a prenuptial agreement, a surrogacy agreement, an agreement on the payment of alimony (paragraph 2 of Article 37, paragraph 2 of Article 40, article 54, article 158 of the KBS), etc.According to paragraph 9 of the Supreme Court's regulatory Resolution No. 2 of March 20, 2003 "On the application by Courts of certain Norms of civil Procedure Legislation", the circumstances of the case, which by law must be confirmed by certain evidence (for example, by a contract if a dispute arises over the essential terms of the transaction), they cannot be supported by any other evidence.There is doubt in the Russian legal literature that a limitation in the admissibility of evidence is also provided for transactions requiring a notarial form. As one of the arguments, it is pointed out that the substantive law gives the court the right to recognize as valid a transaction, although concluded in violation of the notarial form, but fully or partially executed (paragraph 1 of Article 165 of the Civil Code of the Russian Federation, paragraph 2 of Article 154 of the Civil Code)29____________________29 The civil procedural law of Russia: A Textbook for universities /G 75 Ed. Shakaryan M.S. - 1998. pp. 192-193.
3.3. Certain means of proof to confirm the circumstances of the case may also be provided for by the rules of procedural law.So, for example, the obligatory proof, which cannot be replaced by any other, is:- the conclusion of the forensic psychiatric examination in the case of the recognition of a citizen as legally incompetent (part two of Article 325 of the CPC), on the recognition of a citizen as legally capable (part two of Article 328 of the CPC);
- a reasoned medical opinion on the recognition of a person with alcoholism, drug addiction or substance abuse and the need to apply compulsory treatment measures to him in the case of forced hospitalization of a citizen to a psychiatric hospital (part two of Article 335 of the CPC) or in the case of referral of a citizen with alcoholism, drug addiction or substance abuse for compulsory treatment in a drug treatment organization (part two articles 341 of the CPC);- the conclusion of the healthcare organization on recognition as a tuberculosis patient in the case of compulsory treatment of a citizen with tuberculosis and evading treatment (part two of Article 346 of the CPC), etc.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
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