Comments on article 78. Scientific and technical means in the process of proving the Civil Procedure Code of the Republic of Kazakhstan

1. Scientific and technical means in the process of proving a case may be used by the court, the parties, as well as by an expert and a specialist in the performance of their procedural duties provided for by this Code.2. A specialist may be invited by the court to assist in the use of scientific and technical means.3. The use of scientific and technical means is recognized as permissible if it:1) is directly provided for by the law or does not contradict its norms and principles; 2) is scientifically sound; 3) ensures the effectiveness of the proceedings; 4) is safe.4. The results of the covert use of scientific and technical means may not be used as evidence in civil proceedings, except in cases where such use is permitted by law and (or) this evidence is recognized and not disputed by the party against whom it is directed.5. The use of scientific and technical means is recorded by a certificate provided by the party, or by the protocol of the relevant procedural action or the protocol of the court session. The certificate or protocol shall indicate the name of scientific and technical means, the conditions and procedure for their use, the objects to which these means were applied, and the results of their use.6. Research, storage and disposal of documents and other materials obtained by scientific and technical means shall be carried out in accordance with the procedure provided for in Articles 96 and 98 of this Code.1. Scientific and technical means are understood to mean various kinds of technical devices, tools, devices, devices, materials, scientific techniques and methods of their use in order to record information about the properties, characteristics of things and phenomena or about their interaction. These include, in particular, but not exclusively, audio, video recording, computer technology, techniques, etc.Scientific and technical means can be used by the court in the examination and evaluation of evidence, in particular, for audio reproduction.- and video recordings, filming materials, computer information verification, etc.The parties use scientific and technical means when collecting and securing evidence and presenting it to the court, including through their existing technical means (video cameras, mobile device cameras, video recorders, voice recorders, computers, etc.) or with the involvement of a specialist (for example, a cameraman, programmer, etc.).When conducting expert research, an expert uses scientific and technical means (expert equipment), including stationary scientific and technical means., substances (materials), sets (complexes) of scientific and technical means A specialist uses scientific and technical means when participating in a court hearing or conducting a separate procedural action (for example, a navigator with a GPS receiver when determining the boundaries of a disputed land plot on the ground)._______________________38 Tileubergenov E.M. Scientific and technical means in the work of expert units //Bulletin of KazNPU, 2013 // http://articlekz.com/article/10274

2. A specialist may be invited to assist the court in the use of scientific and technical means in the examination and evaluation of evidence. For example, a specialist can assist the court in verifying the authenticity of a screenshot, when playing audio, video recordings, etc.3. The Law establishes a number of criteria for the admissibility of the use of scientific and technical means in the evidentiary process.3.1. The use of scientific and technical means is permissible if it is expressly provided for by law. Thus, the use of scientific and technical means and methods in the production of forensic expert research is provided for in Article 9 of the Law "On Forensic Expert Activity in the Republic of Kazakhstan" (hereinafter referred to in this chapter as the Law on SED). The use of special technical means is provided for by the Law "On Operational Investigative Activities".The use of scientific and technical means is also permissible if it does not contradict the norms of the law and principles. For example, the use of scientific and technical means by a court in the examination and evaluation of evidence, as well as by a specialist involved in the production of a separate procedural action, should not contradict the principles of civil proceedings.3.2. The permissibility of using scientific and technical means is also determined by scientific validity. Scientific validity is expressed in the use of technical means specifically designed to capture information in a certain way.; special scientific knowledge, the use of scientifically proven methods, generally accepted methods and techniques for obtaining information, etc.3.3. It is permissible to use scientific and technical means in the process of proving, if at the same time the results of identification, fixation, research, evaluation of evidence are achieved promptly, in an optimal way, with minimal costs. This criterion applies to the court, the expert and the specialist.3.4. The safety of using scientific and technical means means that their use should not cause harm to persons, including the life and health of citizens, their property, or irreparable damage to the environment.4. Part four of this article establishes a general rule on the inadmissibility of using the results of the covert use of scientific and technical means in civil proceedings as evidence.The only exception to this rule was previously considered to be the admissibility of evidence obtained as a result of the covert use of scientific and technical means in accordance with the Law "On Operational Investigative Activities in the Republic of Kazakhstan", legalized in accordance with the procedure established by the CPC. Information about the circumstances relevant to the civil case must be stated by the court in the court verdict that has entered into legal force.______________________39 Commentary to the Civil Procedure Code of the Republic of Kazakhstan//Library of the Supreme Court of the Republic of Kazakhstan. Astana, 2008. - p. 334.The novelties of the CPC provide the basis for an extended interpretation of this rule.

The right to privacy, the grounds and procedure for its restriction are established by paragraphs 1, 3 of Article 39 of the Constitution, the Law "On Operational Investigative activities in the Republic of Kazakhstan", that is, the norms of substantive law.The norms of the CPC regulate the procedure for judicial proceedings in civil cases, the procedure for considering cases in disputes (Article 1 of the CPC), and the conduct of the parties in the process, but they do not and cannot establish rules for the non-procedural conduct of the parties, including relations that existed before the initiation of a civil case in court. Consequently, the norms of the CPC cannot establish prohibitions and restrictions on non-procedural rights.The use of scientific and technical means in everyday life and business, which makes it possible for everyone to record, including covertly, the actions of other persons, refers to the non-procedural behavior of the parties. The norms of the CPC cannot establish independent prohibitions and restrictions on the use of scientific and technical means in everyday life, business turnover, that is, outside the process, which are not provided for by the norms of substantive law. The norms of the CPC can only duplicate or refract in a procedural form the prohibitions and restrictions of subjective rights provided for by the norms of substantive law.Consequently, in itself, apart from the relevant norms of substantive law, the rule of part four of this article is not a reason for the inadmissibility of the results of the covert application of scientific and technical means. The use of these results as evidence in a civil case is possible only in cases where their use is permitted by law, and (or) these proofs are recognized and not disputed by the party against whom they are directed.The reason for not allowing such evidence may be, for example, the right of everyone to privacy provided for in paragraph 1 of article 18 of the Constitution. A person who does not recognize and disputes the results of the covert use of scientific and technical means must prove a violation by such covert use of his right to privacy (or other subjective right), including attribution of recorded actions and events., the relationship of the parties to the sphere of the private life of this person.If a violation of the right to privacy (or other subjective right) is proven, the results of the covert use of scientific and technical means will be inadmissible as evidence due to its illegal receipt, in violation of a person's subjective rights, and not because of the very fact of the covert use of scientific and technical means, as provided for in part four of Article 78 of the CPC.This is confirmed by the novel of the CPC, aimed at expanding the evidence base., obtained using scientific and technical means. The legalization of evidence is carried out due to the fact that the person agrees to the use of information about his private life (that is, the violation of a subjective right is eliminated), and not due to the fact that the person agreed to allow illegal evidence into the process (which is not provided for in the procedural rights of the party).The right to privacy includes the prohibition of collecting, storing, using, and distributing information about a person's private life without their consent. If a person's actions are accidentally recorded unnoticed by a DVR that is openly installed on someone's car or an organization's surveillance camera, then proving a violation of the right to privacy is problematic: collecting information involves purposeful activity rather than accidental, unintentional fixation; not all actions of a person relate to his private life; presentation to the court information (evidence) is not a dissemination of information, etc.

This interpretation of the law reflects the further improvement of the means of proof in civil proceedings, corresponds to the development of scientific and technological progress and the introduction of its achievements into legal proceedings, expands the evidence base in the implementation of judicial protection of rights.5. The Party records the use of scientific and technical means in the proving process in out-of-court procedures (photography, filming, audio, video recording) a certificate indicating the name of scientific and technical means, the time and place of use of technical means, information about the persons with whose participation scientific and technical means were used, the results of the use of these means, as well as the originals of the consumables used (negatives, magnetic recordings, etc.)_____________________40 Commentary to the Civil Procedure Code of the Republic Kazakhstan//Library of the Supreme Court of the Republic of Kazakhstan. Astana, 2008. - p. 334.

Similar data on the use of scientific and technical means are set out in the minutes of the court session or a separate procedural action.6. The result of the use of scientific and technical means is the receipt of documents and other materials that may relate to written (documents) or physical evidence. The legal regime for their research, storage and disposal is established by the relevant norms of the CPC on the research, storage and disposal of evidence.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases