Comments on article 80. Witness statements of the Civil Procedure Code of the Republic of Kazakhstan

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1. Any person who knows any information about the circumstances relevant to the case may be a witness. The testimony of a person is not recognized as evidence if he cannot indicate the source of his knowledge.2. The person requesting to summon a witness is obliged to inform the court of his surname, first name, patronymic and place of residence or place of work, to justify the need to interrogate this witness.3. Are not subject to interrogation as a witness:1) persons who, due to their young age, physical or mental disabilities, are unable to correctly perceive facts and give correct testimony about them, with the exception of cases involving disputes about the upbringing of children; 2) representatives in a civil case or representatives, defenders in a criminal case, an administrative offense case - about the circumstances that have become they are aware of it in connection with the performance of their duties as a representative or defender; 3) the judge - on issues that arose in the conference room during the discussion of the circumstances of the case when making a decision or verdict; 4) the arbitrator, the juror - on the circumstances that became known to them in connection with the performance of their duties.;

5) the mediator, the judge who conducted the mediation, - about the circumstances that became known to them in connection with the mediation, except in cases provided for by law; 6) the clergy - about the circumstances that they became aware of from persons who trusted them in confession; 7) other persons specified in the law.4. A person has the right to refuse to testify in court against himself, his spouse and close relatives, whose circle is determined by law. This article indicates the source of witness testimony, the procedure for filing a motion to summon a witness, and the subjects of witness immunity.1. Any natural person who is able to correctly perceive the circumstances of reality relevant to the civil case under consideration may be a witness.As a rule, the need for witness testimony arises in the following cases::a) establishing individual facts that are impossible or difficult to document (for example, the fact of dependency, the fact of acceptance of inheritance);

b) clarifying the circumstances that were documented at the time, but the documents are lost and cannot be restored (most cases of establishing legal facts in a special procedure); c) investigating the reliability of the means of proof (explanations of the parties, written and physical evidence, etc.).In the legal literature, testimony, depending on its content, is divided into: a) testimony containing information-information; b) testimony containing, in addition to information, judgments; c) testimony of knowledgeable witnesses.41 Information is usually provided by witnesses who are not familiar with the established relationships and legal relations of the disputing parties. They are usually limited to stating one or more facts that are important for the proper resolution of a civil case. Such testimony is given by eyewitnesses who accidentally found out about certain circumstances. Information-judgments are often provided by witnesses who are well acquainted with the parties or with one of them, who know the development of the disputed relationship. Often, such witnesses (relatives, girlfriends, and enemies of one of the parties) have an actual interest in resolving the case. As a rule, they do not limit themselves to telling about a specific fact, but state their thoughts, judgments and guesses containing an assessment of the disputed situation, and give characteristics of conflicting people. It is not always easy to separate the reasoning of such persons from the actual evidentiary information. The testimony of these witnesses more fully describes the controversial situation, the factual side of the case, but at the same time there is a great danger of distorting the circumstances of the conflict, replacing evidence with biased information. The third type of testimony is obtained from knowledgeable witnesses who, due to their professional and special knowledge, are able not only to provide the court with factual information, but also to indicate the causes and consequences of specific circumstances. For example: a veterinarian can not only talk about the mass death of purchased livestock, but also indicate its possible causes.; The driver can explain in detail and expertly the circumstances of a traffic accident that he witnessed. Knowledgeable witnesses are close in nature to experts. These features and differences of information must be taken into account when checking and evaluating witness statements.________________________41 Fokina M.L. Witness testimony in adversarial civil proceedings. Saratov, 1996. p. 60

The witness must indicate the source of his awareness - he was personally present or participated in the actions or events, saw or heard them directly. Persons who know about the essential circumstances of the case from the words of others or as a result of familiarization with a certain document may also be questioned as witnesses. The testimony of such witnesses, which is derivative evidence, makes it possible to discover the original evidence.

If a witness cannot indicate the source of his knowledge (rumors, gossip, "everyone knows about it", etc.), then the testimony of such a person is not recognized as evidence.2. In accordance with the principle of adversarial proceedings (Article 15 of the CPC) and the rule for the presentation of evidence (Article 73 of the CPC), witnesses are summoned to court only at the request of the persons participating in the case. The court may not summon a witness on its own initiative. A request for questioning of a witness may be submitted orally or in writing.By virtue of the general rule on the procedure for presenting evidence (part five of Article 73 of the CPC), a person requesting to summon a witness is obliged to provide the court with information about the witness, allowing to determine his location and summon him to court. If the person requesting to call a witness does not know all the information about the witness (for example, if the patronymic is unknown), the court should grant the request if there is a real opportunity to assist in obtaining evidence (part four of Article 73 of the CPC).The petition must also substantiate the need to question the witness, for which the petition must indicate which factual circumstances relevant to the case are being asked to question the witness.

The petition does not need to substantiate the reasons preventing the independent obtaining of evidence, since the testimony of a witness can only be obtained by questioning him at a court hearing (Articles 203, 204 of the CPC), except in the case of providing evidence in accordance with the procedure provided for by the legislation on the notary (part three of Article 69 of the CPC).3. Part Three of this article contains a list of persons who are not subject to interrogation as a witness.The impossibility of interrogating these persons as a witness is due either to their lack of civil procedural legal and legal capacity (Articles 44, 45 of the CPC), or to the statutory witness immunity of professional and other functions (absolute witness immunity or official immunity).3.1. Persons who, due to their young age, are unable to correctly perceive facts and give correct testimony about them are not subject to interrogation.Minors are minors under the age of 14 (Article 23 of the Civil Code). The law does not set age limits for involving minors as witnesses, but only provides for the ability of minors to correctly perceive facts and give evidence about them as a criterion. This ability is established by the court with the involvement of a specialist (part one of Article 206 of the CPC).

A minor's age does not prevent a person from being questioned as a witness in child-rearing disputes, taking into account the procedural specifics of questioning a minor witness (Article 206 of the CPC).3.2. Not every physical or mental disability prevents a person from being questioned as a witness, but only the one due to which the person is unable to correctly perceive the facts and give correct testimony about them. For example, a deaf person cannot testify about the circumstances that need to be heard, but can be questioned about the circumstances that can be seen. Persons with mental and physical disabilities may be questioned in the presence of a guardian, trustee and/or a doctor of the relevant medical institution.

3.3. Due to witness immunity (duty to remain silent), they are not subject to interrogation as a witness.:- representatives in a civil case or representatives, defenders in a criminal case, a case of an administrative offense - about the circumstances that became known to them in connection with the performance of their duties as a representative or defender (subparagraph 4) of paragraph 1 of Article 15 of the Law "On Advocacy");- the judge - on the issues that arose in the consultation room when discussing the circumstances of the case during the pronouncement of a decision or sentence (paragraph 3 of Article 25 of the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan");- arbitrator, juror - about the circumstances that became known to them in connection with the performance of their duties (subparagraph 6) of Article 5 of the Law "On Arbitration", subparagraph 4) of paragraph 3 of Article 13 of the Law "On Jurors");- mediator, the judge who conducted the mediation, - about the circumstances that became known to them in connection with mediation, except in cases provided for by law (paragraph 2 of Article 8 of the Law "On Mediation", part four of Article 66 of the CPC);- clergymen - about the circumstances that they became aware of from persons who trusted them in confession (subparagraph 7) of paragraph 3 of Article 77 of the Constitution).

The list of persons who are not subject to interrogation as a witness is open. These may include other persons specified in the law.This list of persons may be determined by the provisions on legally protected secrets or international obligations. International legal acts establish the immunity of diplomatic representatives, members of government delegations and consular staff in the field of civil jurisdiction, fully or partially exempting them from the functions of a witness in civil cases.For example, article 31 of the Vienna Convention on Diplomatic Relations (Vienna, April 18, 1961, ratified by Resolution of the Supreme Council of the Republic of Kazakhstan dated March 31, 1993 No. 2057) stipulates that a diplomatic agent is not required to testify as a witness.4. Part Four of this article establishes the circle of persons exempt by law from the obligation to testify in court (the right to remain silent). In the legal literature, this type of witness immunity is called relative or limited, it is possible to limit it by one's own expression of will - a person may express a desire to testify despite the opportunity provided to him by law to refuse to give such testimony.__________________42 Volosova N.Y. Classification and types of witness immunity//Bulletin of Omsk State University. 2010. No. 3. pp. 18-23.

This type of witness immunity is based on subparagraph 7) of paragraph 3 of Article 77 of the Constitution - no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by law. A person has the right to refuse to testify in court against himself. The spouse against whom it is possible to refuse to testify is a married person (subparagraph 26) of paragraph 1 of Article 1 of the KBS). This type of witness immunity does not apply to former spouses and persons who are in a de facto marital relationship. A person has the right to refuse to testify in court against close relatives, which include parents (parent), children, adoptive parents (adoptive parents), adopted children, full- and half-siblings, grandparents, grandchildren (subparagraph 13) of paragraph 1 of Article 1 of the KBS, subparagraph 11) of Article 7 CPC).

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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