Comments on article 70. Statement on securing evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. An application for securing evidence is submitted to the court in which the case is pending.
2. An application for securing evidence must specify the evidence that needs to be secured, the circumstances of the case for which such security is necessary to confirm or refute, and data indicating that it is difficult to provide the necessary evidence. The application must indicate the case for which it is necessary to provide evidence, the presentation of which was refused.
3. Based on the results of consideration of the application for securing evidence, the court issues a ruling according to which it performs procedural actions to secure evidence or refuses to do so. The ruling may be appealed or appealed to the court of appeal, the decision of which is final and cannot be appealed. With a private complaint or protest, the material extracted from the case concerning the ruling is sent to the court of appeal.This article regulates the procedure for requesting an interested person to provide evidence, the content of such an appeal, and the outcome of the court's consideration of the appeal. The issues of securing evidence are explained in paragraph 17 of the normative Resolution of the Supreme Court No. 21 of December 13, 2001 "On the preparation of civil cases for trial".
1. An application for securing evidence shall be submitted to the court of first instance in which the case is pending, including the one to which the case has been transferred by jurisdiction in accordance with the procedure provided for in Article 34 of the CPC. Such courts are district (city) and equivalent courts (Article 26 of the CPC), the relevant specialized courts and the specialized composition of the Astana City Court (Article 27 of the CPC), as well as the Supreme Court (Article 28 of the CPC).
2. An application for providing evidence must be substantiated.To do this, the applicant must indicate the evidence that needs to be provided: to interrogate the witness, appoint an expert examination, inspect the physical evidence, etc.The statement must specify the circumstances that can be confirmed or refuted by the evidence provided. For example, if a request is made to interrogate a witness, it should be indicated exactly what information this witness can provide to the court - about the circumstances of the transaction or the execution of the document, the actions of the defendant in violation of the plaintiff's rights, etc.
The application must also substantiate the need to provide evidence, that is, specify specific circumstances that may make it impossible or difficult to provide such evidence to a court hearing.: a serious illness of a witness or his move to another state, rapid damage to physical evidence, etc.
3. An application for securing evidence is considered by the court. As a result of consideration of the application for securing evidence, the judge issues a ruling on the satisfaction of the application and the commission of a certain procedural action to secure evidence. The definition should specify which of the methods listed in part two of Article 69 of the CPC to provide evidence will be used by the court, the time and place of the procedural action, which should be notified to the applicant and other persons involved in the case (part two of Article 71 of the CPC). The judge also issues a ruling on the refusal to satisfy the application, in which the reasons for the decision must be indicated: the absence of the need to provide evidence, since it has no connection with the actual circumstance indicated, or the specified circumstance is mistakenly indicated by the applicant as relevant to the case, etc. In the case of a request for two or more evidences, the court resolves the issue in respect of each claimed evidence. This article does not specify a time limit for reviewing an application for securing evidence. However, based on the fact that the provision of evidence must be made no later than three working days from the date of receipt of the application (part one of Article 71 of the CPC), taking into account the need to notify the parties involved in the case in advance of the procedural action (part two of Article 71, parts one, three of Article 127 of the CPC), the statement on the provision of evidence Regardless of the outcome of the review, it must be reviewed within three working days from the date of receipt of the application. The court's ruling, both in the case of satisfaction and in the case of refusal to satisfy the request for evidence, may be challenged by the persons involved in the case to the court of appeal in accordance with the procedure provided for in Article 429 of the CPC. The decision of the court of appeal is final and is not subject to review by a higher court. In contrast to the usual procedure (part four of Article 429 of the CPC), the material concerning the ruling is sent to the court of appeal. An application for securing evidence, materials attached to the application, a court ruling based on the results of consideration of the application, a private complaint against the ruling, reviews of a private complaint, and other materials necessary for consideration of the issue of securing evidence are subject to inclusion in this material. If the application is satisfied, the court provides evidence in accordance with the procedure provided for in Article 71 of the CPC, even if the court ruling is appealed by the persons involved in the case. If the court of appeal decides to grant the application, which was refused by the court of first instance, the court of first instance determines the time and place of the procedural action, and notifies the parties involved. The time limit for the procedural action to provide evidence, by analogy with the first part of Article 71 of the CPC, should be no later than three working days from the date of receipt by the court of first instance of the material received from the court of appeal.
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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