Comments on article 71. The procedure for providing evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Evidence shall be provided by a judge when preparing a case for trial or when considering a case in a court of first instance within three working days from the date of receipt of the application.
2. The applicant and other persons participating in the case shall be notified of the time and place of providing evidence, however, their failure to appear does not constitute an obstacle to the court taking a separate procedural action to provide evidence.
3. The protocols and all evidence collected in the order of securing shall be transferred to the court considering the case, with notification of the persons participating in the case. This article provides for the procedure for conducting a procedural action to provide evidence if the court satisfies the relevant application.
1. Evidence may be provided by a judge when preparing a case for trial in accordance with the powers provided for in Article 165 of the CPC, or after the case has been assigned to trial, but before a court hearing in which evidence can be obtained and examined in the usual manner. The time limit for conducting a procedural action to provide evidence should not exceed three working days from the date of receipt of the application.
2. The court shall notify the persons participating in the case and their representatives of the time and place of providing evidence (part one of Article 127 of the CPC). Witnesses who have been requested to be questioned are also called, and if necessary, other participants who assist justice (specialists, interpreters).The non-appearance of the persons participating in the case is not an obstacle to the commission by the court of a separate procedural action to provide evidence. The law does not specify the consequences of the non-appearance of the persons involved in the case due to their improper notification by the court. Since the requirement of the law on the time limit for providing evidence is imperative ("it is carried out no later than three working days"), it seems that in this case the court performs the requested procedural action even if the persons involved in the case do not appear. The evidence obtained as a result of the procedural action is evaluated by the court in accordance with the general procedure (Article 68 of the CPC). The persons participating in the case who did not appear due to improper notification by the court have the right to raise their objections to the evidence obtained as a result of providing evidence, as well as to request a second (if possible) examination of the same evidence (for example, a second interrogation of a witness).
3. The wording of part three of this article on the transfer of protocols and evidence collected in order to secure evidence to the court considering the case partially reflects the situation provided for in the previously existing CPC, according to part one of Article 75 of which applications for securing evidence were submitted to the territorial court, where procedural actions to secure evidence should be performed. In this regard, the court, which provided evidence, notified the persons involved in the case about the transfer of protocols and evidence to the court considering the case. Currently, such procedural actions are carried out by the court considering the case (see the commentary to the first part of Article 70 of the CPC), in connection with which the protocols of individual procedural actions drawn up and the evidence collected in the order of securing are attached to the materials of the case in which the evidence was secured, without notifying the parties involved. The protocols and the evidence collected as a result of the execution of the court order (see the commentary to the second part of Article 69 of the CPC) are transferred to the court considering the case. The general procedure for executing a court order does not provide for notification of the persons involved in the case about sending protocols and materials to the court considering the case (part three of Article 75 of the CPC). In this regard, it seems that there is also no need for such notification and when providing evidence in the order of execution of the court order.
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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