Comments on Article 8. Judicial protection of the rights, freedoms and legitimate interests of a person of the Civil Procedure Code of the Republic of Kazakhstan

1. Everyone has the right, in accordance with the procedure established by this Code, to apply to a court for protection of violated or disputed rights, freedoms or legitimate interests.

2. State bodies, within the limits of their competence, citizens and legal entities, in accordance with the procedure established by this Code, have the right to apply to the court with an application for the protection of violated or disputed legitimate interests of other persons or an indefinite circle of persons.The prosecutor has the right to apply to the court with a claim (statement) in order to carry out the duties assigned to him and to protect the rights of citizens and legal entities, public and state interests.3. The jurisdiction provided for by law may not be changed by anyone without his consent.4. The waiver of the right to appeal to the court is invalid if it contradicts the law or violates someone's rights, freedoms or legitimate interests.5. A claim (application) may be filed with the court in writing or in the form of an electronic document, taking into account the specifics provided for by this Code.6. If a law establishes or a contract provides for a pre-trial dispute settlement procedure for a certain category of cases, an appeal to the court may be made after observing this procedure.1. In accordance with paragraph 3 of article 13 of the Constitution, everyone has the right to judicial protection of their rights and freedoms. This constitutional principle is reflected in the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", as well as in the civil procedure legislation.According to paragraph 2 of article 1 of the said Constitutional Law, everyone is guaranteed judicial protection from any unlawful decisions and actions of state bodies, organizations, officials and other persons that infringe on or restrict rights, freedoms and legitimate interests., stipulated by the Constitution and laws of the Republic.No one can be deprived of the right to have his case examined in compliance with all the requirements of the law and justice by a competent, independent and impartial court. Refusal of judicial protection of violated rights is considered illegal.Thus, by the ruling of the Oktyabrsky District Court of the city of Karaganda, L. returned an application for establishing the legal fact of receiving wages and materials as not subject to resolution in civil proceedings. In a complaint to the Supreme Court, L. She asked to cancel the judicial act of the first instance, pointing out that the establishment of the fact was necessary for her to determine the amount of the accrued pension. Having considered the complaint, the Supreme Court pointed out that by virtue of paragraph 2 of Articles 13 and 76 of the Constitution, judicial power extends to all cases and disputes arising on the basis of the Constitution, laws, and other normative legal acts, and everyone has the right to judicial protection of their rights and freedoms.In accordance with paragraph 2 of the normative resolution of the Supreme Court No. 13 of June 28, 2002 "On Judicial Practice in cases of establishing facts of legal significance", courts may accept an application for establishing facts of legal significance., and to consider such cases in the order of special proceedings, if:a) according to the law, such facts give rise to legal consequences (the emergence, modification or termination of personal or property rights of citizens or organizations); b) the applicant has no other opportunity to obtain or restore proper documents certifying the fact; c) the current legislation does not provide for another (non-judicial) procedure for their establishment;

d) the establishment of a fact is not related to the subsequent resolution of a dispute on the law under the jurisdiction of the court.In the complaint, L. It was pointed out that all these circumstances existed and that it was necessary to establish the legal fact of receiving a salary for the subsequent accrual of a higher pension, but the court ruling deprived her of the right to judicial protection.Taking into account the above circumstances, the Supreme Court overturned the ruling of the Oktyabrsky District Court of Karaganda and sent the materials to the court of first instance to establish the legal fact of the plaintiff's receipt of wages. The right to judicial protection applies not only to citizens of the Republic of Kazakhstan., but also for foreign citizens and stateless persons legally residing in the territory of the republic.

__________________3 Archive of the Supreme Court, NP 4gp-209-07

2. State bodies, legal entities or citizens have the right to apply to the court for the protection of the rights and legally protected interests of other persons or an indefinite circle of persons. A claim in defense of the interests of an incapacitated citizen may be filed regardless of the request of the person concerned.Persons who have filed a claim in defense of other people's interests enjoy all procedural rights and bear all the procedural duties of the plaintiff, except for the rights provided for in part three of Article 55 of the CPC. If the person in whose interests the case is initiated does not support the stated claim, the court reserves the claim (application). without consideration, unless the rights of third parties are infringed.In accordance with article 54 of the CPC, supreme supervision over the precise and uniform application of laws in civil proceedings on behalf of the State is carried out by the Prosecutor General, both directly and through subordinate prosecutors.The prosecutor has the right to enter into the process in order to give an opinion on the case in order to carry out the duties assigned to him by law. The participation of the prosecutor in civil proceedings is mandatory in cases affecting the interests of the State, when it is necessary to protect public interests or citizens who cannot defend themselves on their own, as well as when the need for the prosecutor's participation is recognized by the court or prosecutor. The prosecutor has the right to apply to the court with a claim, an application for the protection of the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of legal entities, public or state interests. A claim for the protection of labor, housing and other rights and freedoms of an unlimited number of persons in the social sphere, as well as in defense of the interests of an incapacitated citizen, may be filed by a prosecutor regardless of the request and application of the person concerned.3. Subparagraph 3) of paragraph 3 of Article 77 of the Constitution contains one of the constitutional principles of the administration of justice, which should be guided by the court that no one can change the jurisdiction provided for by law without his consent.The definition of jurisdiction for different categories of cases by the procedural law takes into account the specific feature, complexity, social significance of cases, and the need to ensure their rapid and effective resolution. It is not allowed to change the jurisdiction of cases provided for by the norms of the CPC on the basis of subparagraph 3) of paragraph 3 of Article 77 of the Constitution without the consent of the parties to the case.

This follows from paragraph 2 of article 4 of the Constitution, which establishes the direct effect of constitutional norms throughout the Republic and their priority over the norms of laws and other normative legal acts.Cases of determining the jurisdiction of a case that does not coincide with the one provided for by law, in the absence of the plaintiff's consent, should be considered as a violation of the constitutional norm of subparagraph 3) of paragraph 3 of Article 77 of the Basic Law.Subparagraph 3) of paragraph 3 of article 77 of the Constitution presupposes the existence of rules on the jurisdiction of cases. The competence of the various levels of courts is determined only by the range of cases assigned by law to their jurisdiction. At the same time, the procedural procedure for considering cases in all parts of the country's judicial system is uniform and binding on all and does not create any privileges for one group of people, nor does it infringe on someone's right to judicial protection of their rights and freedoms.Specific rules on jurisdiction, including those providing for the transfer of a case from one court to another, are determined by procedural legislation.The Constitution and civil procedure legislation allow for the transfer of a case to another court of the same level, entailing a change of jurisdiction, only with the consent of the person., whose case is being considered by the court.In accordance with paragraph 7 of the normative resolution of the Supreme Court No. 2 of March 20, 2003 "On the application by courts of certain norms of civil procedure legislation" in cases where, during the consideration of a civil case, the defendant, whose place of residence was not previously known, files a petition for the transfer of the case to the court at his place of residence or if it turns out that the case was accepted for trial in violation of the rules of jurisdiction, the court considering the case transfers the case to the court to whose jurisdiction the case in question belongs., what makes the appropriate definition.Thus, by a decision of the Supreme Court, the ruling of the Almaty City Court was canceled and the case was sent for a new hearing. It was established that the city court's ruling terminated the proceedings on the LLP's claim against a foreign company for the recovery of amounts on the grounds that the case is not subject to consideration in civil proceedings, since the territory of the Republic of Kazakhstan is not a place of partial or full execution of the contract.Meanwhile, the Supreme Court pointed out that one of the conditions of the contract concluded between the parties is the possibility of dispute resolution by the courts of the republic, which is confirmed by clause 1.5.2 of the contract providing for dispute resolution.Besides, in accordance with the norms of the CPC, the courts of the republic consider cases involving foreign persons if the respondent organization is located or the respondent citizen has a place of residence in the territory of the Republic of Kazakhstan, as well as in cases where:1) the governing body, branch or representative office of a foreign person is located in the territory of the Republic of Kazakhstan; 2) the defendant has property in the territory of the Republic of Kazakhstan; 3) in the case of recovery of alimony and establishing paternity, the plaintiff has a place of residence in the Republic of Kazakhstan; 4) in the case of compensation for injury caused, other damage to the health or death of the breadwinner, the damage was caused on the territory of the Republic of Kazakhstan or the plaintiff has a place of residence in the Republic of Kazakhstan; 5) in the case of compensation for damage caused to property, the action or other circumstance that served as the basis for the claim for compensation took place on the territory of the Republic of Kazakhstan; 6) the claim follows from the contract according to which full or partial execution must take place or has taken place on the territory of the Republic of Kazakhstan;

7) the claim arises from unjustified enrichment that took place on the territory of the Republic of Kazakhstan; 8) in the case of divorce, the plaintiff has a place of residence in the Republic of Kazakhstan or at least one of the spouses is a citizen of the Republic of Kazakhstan; 9) in the case of the protection of honor, dignity and business reputation, the plaintiff has a place of residence in the Republic of Kazakhstan;10) in the case of the protection of the rights of personal data subjects, including compensation for damages and (or) compensation for moral damage, The plaintiff has a place of residence in the Republic of Kazakhstan.According to the CPC, the courts of the Republic of Kazakhstan consider other cases if they are referred to their competence by law and (or) an international treaty ratified by the Republic of Kazakhstan.It can be seen from the cargo customs declaration that the goods were shipped from the territory of the Republic of Kazakhstan, that is, the execution of the contract took place in the above-mentioned territory. The Supreme Court found a violation of the rule of jurisdiction and annulled the judicial act.4. A person's waiver of the right to appeal to a court is invalid if it contradicts the law or violates someone's rights and legally protected interests. This restriction is necessary to protect the rights of persons who are unable to exercise their right to judicial protection on their own. For example, the state guardianship authority cannot refuse to protect the violated or disputed rights of an incapacitated person.5. Compliance with the proper form of the statement of claim is one of the important conditions for the exercise of the right to file a claim. The statement of claim is submitted in writing or in the form of an electronic document and must contain certain details specified in the law. In addition, its content should reflect the specifics of the dispute that will be discussed at the court session.In the general information contained in the statement of claim, regardless of the nature of the dispute, the name of the court to which the statement of claim is filed must be clearly indicated, and then all necessary information about the plaintiff must be indicated (full name, surname, patronymic (if it is indicated in the identity document), his exact postal address. The same information applies to the defendant. If one of the parties is a legal entity, then in addition to its exact name (in accordance with the registered charter), the location of the legal entity must be indicated in accordance with the registration, bank details. All this information is necessary for other persons acting on the side of the plaintiff or the defendant. The name of the representative, when he represents the interests of one of the parties, must contain an indication of his last name, first name, patronymic (if it is indicated in the identity document) and information about his place of work (member of the bar association, law firm providing legal assistance, etc.). When submitting an application in electronic form It is certified by the electronic digital signature of the applicant.It is extremely important for the proper resolution of the dispute to indicate the circumstances on which the plaintiff bases his claim against the defendant. We are talking about the legal facts that form the basis of the claim. At the same time, it is important to indicate legally significant facts that will be included in the subject of proof in the case.The statement of claim should include evidence confirming the circumstances stated by the plaintiff in support of his claims. If the plaintiff has not provided evidence, the judge cannot refuse to accept the statement of claim on this basis.It is important to indicate in the statement of claim that the material and legal claim of the plaintiff to the defendant, which is the subject of the claim. The nature of the claim is determined by the nature of the disputed substantive relationship from which the plaintiff's claim arises. The judge's understanding of the plaintiff's position depends on how clearly and legally the claim is formulated.6. The pre-trial dispute settlement procedure may be established by law or stipulated in the agreement of the parties. In these cases, its observance is mandatory and the application or claim is not accepted by the court without following the pre-trial dispute resolution procedure. Evidence of an attempt to settle the dispute by the party is attached to the application.A legislative act may set a deadline for the party's (defendant's) response, after which the application is accepted for court proceedings.For example, the Statute of the Court of the Eurasian Economic Union obliges an economic entity to apply to this body for dispute settlement before appealing against the Decision of the Eurasian Economic Commission. Failure to take measures to resolve the issue within three months gives the business entity the right to appeal to the Court.Therefore, in accordance with article 9 of the Rules of Procedure of the Court of the Eurasian Economic Union, approved by Decision No. 101 of the Supreme Eurasian Economic Council dated December 23, 2014 (hereinafter referred to as the Rules), the statement of the business entity contains information on compliance with the pre-trial dispute settlement procedure, as well as supporting documents. If the established pre-trial dispute settlement procedure is not followed, then according to Article 33 of the Rules of Procedure, the Court issues a decision to refuse to accept the application for trial.A similar approach to the pre-trial settlement of a dispute is also enshrined in the laws of national States. Compliance with the pre-trial dispute settlement procedure established by law or by agreement of the parties is mandatory.

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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