Comments to article 13. Equality of all before the law and the court of the Civil Procedure Code of the Republic of Kazakhstan

1. Justice in civil matters is carried out on the basis of equality of all before the law and the court.2. In the course of civil proceedings, none of the:citizens may not be given preference, none of them may be discriminated against on the grounds of origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances; legal entities may not be given preference and none of them They may be discriminated against based on their location, organizational and legal form, subordination, form of ownership, and other circumstances.3. The terms of civil proceedings in respect of persons who are immune from civil liability are determined by the Constitution of the Republic of Kazakhstan, this Code, laws and international treaties ratified by the Republic of Kazakhstan.1. Article 14 of the Constitution stipulates that everyone is equal before the law and the courts. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances.The basic principles of this principle are based on the recognition of equality of participants in civil law relations, inviolability of property, and freedom of contract., the inadmissibility of arbitrary interference of anyone in private affairs.Justice in civil cases is carried out on the basis of equality of citizens and organizations before the law and the court.According to article 19 of the Constitution, everyone has the right to determine and indicate or not indicate their national, party and religious affiliation.The State in no way influences an individual's choice of nationality, political or religious views, everyone has the right to self-determination based on their own beliefs.2. In civil proceedings, none of the legal entities may be given preference and none of them may be discriminated against on the grounds of their location, organizational and legal form, subordination, forms of ownership and other circumstances.The terms of civil proceedings against persons who are immune from civil liability are determined by the Constitution, the CPC, laws and international treaties ratified by the Republic of Kazakhstan.The commented article separately distinguishes citizens and legal entities due to the fact that citizens, on the one hand, On the other hand, legal entities are characterized by various characteristics. Thus, citizens may differ from each other by nationality, language, or membership in a particular religious denomination. All these signs are not applicable to legal entities that differ from each other in location, organizational and legal form (LLP, JSC, etc.), form of ownership (private or public).Moreover, in both cases, the law does not contain an exhaustive list of grounds on which discrimination is prohibited. No circumstances can serve as a basis for discrimination against some and the preferences of other citizens or legal entities.It should be borne in mind that equality before the law and the courts does not mean equality, or, so to speak, "equality" of rights. On the contrary, all persons have a different set of substantive and procedural rights. The principle under consideration means an equal approach of both the legislator and the court to different subjects. Equality before the law is expressed in the equality of the parties to enter into legal relations regulated by a specific law, that is, equality before the adopted law, although the content of the law may contain norms establishing unequal rights and obligations of participants in production. 

In some cases, equality of rights is referred to in other norms of the CPC, for example, equality of procedural rights of the parties (plaintiff and defendant) before the court.

3. An important act defining issues of immunity is the Vienna Convention on Diplomatic Relations (Vienna, April 18, 1961), ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated March 31, 1993 "On the Accession of the Republic of Kazakhstan to the Vienna Convention on Diplomatic Relations of 1961".According to article 31 of the Vienna Convention, a diplomatic agent (the head of a mission or a member of the diplomatic staff of a mission) enjoys immunity from the civil jurisdiction of the receiving State, except in the following cases::

a) property claims relating to private immovable property located in the territory of the receiving State, unless he owns it on behalf of the accrediting State for the purposes of representation; b) claims relating to inheritance, in respect of which the diplomatic agent acts as executor of the will, trustee of the inherited property, heir or beneficiary as a private person, and not on behalf of the accrediting State;

c) claims related to any professional or commercial activity carried out by a diplomatic agent in the receiving State outside of his official functions.A diplomatic agent is not required to testify as a witness.

No enforcement measures may be taken against a diplomatic agent, with the exception of the above three cases, and only on condition that the appropriate measures can be taken without violating the inviolability of his person or his residence.

The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

In accordance with article 37 of the Vienna Convention on Diplomatic Relations, the following persons also enjoy immunity from civil jurisdiction:

1) family members of the diplomatic agent living with him, if they are not citizens of the receiving State;

2) members of the administrative and technical staff of the representative office and members of their families living with them, if they are not citizens of the receiving State or do not permanently reside there. Immunity from the civil jurisdiction of the receiving State does not apply to acts committed by them not in the performance of their duties.;

3) members of the service staff of the representative office who are not citizens of the receiving State or do not permanently reside there. They shall enjoy immunity in respect of acts committed by them in the performance of their duties; 4) domestic workers of the staff of the mission, if they are not citizens of the receiving State or do not permanently reside there. They shall enjoy immunities only to the extent permitted by the receiving State.

According to article 32 of the Vienna Convention on Diplomatic Relations, the sending State may waive immunity from the jurisdiction of diplomatic agents and other persons enjoying immunity. The refusal must always be explicit. Waiver of immunity from jurisdiction in respect of a civil case does not mean waiver of immunity in respect of the execution of a judgment, which requires a special waiver.

The initiation of a case by a diplomatic agent or a person enjoying immunity from jurisdiction deprives him of the right to invoke immunity from jurisdiction in respect of counterclaims directly related to the main claim.

Article 39 of the Vienna Convention on Diplomatic Relations establishes that every person entitled to immunities enjoys them from the moment he enters the territory of the receiving State on his way to take up his post or, if he is already in that territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or another the ministry in respect of which there is an agreement.If the functions of a person enjoying immunities come to an end, these immunities cease at the moment when he leaves the country., or after a reasonable period of time to do so, but continue to exist until that time, even in the event of an armed conflict. However, in respect of acts committed by such a person in the performance of his functions as an employee of the mission, immunity continues to exist.In the event of the death of a representative office employee, his family members continue to enjoy the immunities to which they are entitled.In connection with the creation of the Eurasian Economic Union, Annex No. 32 to the Treaty adopted the Regulation on Social Guarantees, Privileges and Immunities in the Eurasian Economic Union (hereinafter - Position).According to the Regulations, members of the Eurasian Economic Commission and judges of the Court of Justice of the Union enjoy privileges and immunities to the extent provided for by the Vienna Convention on Diplomatic Relations of April 18, 1961 for a diplomatic agent.Family members of the members of the Board of the Commission and judges of the Court of the Union who live with them are exempt from state duties; they are exempt from restrictions on entry into and exit from the State of residence, registration as foreigners and obtaining a temporary residence permit; They enjoy the same repatriation benefits that diplomatic representatives enjoy during international crises.Officials:1) are not subject to criminal, civil and administrative liability for what they have said or written and for all actions committed by them as officials; 2) are exempt from taxation of wages and other remuneration paid by the Union authorities; 3) are exempt from state duties; 4) are exempt from restrictions on entry into the host state and leaving it, from registering as foreigners and obtaining a temporary residence permit; 5) enjoy the same repatriation benefits as diplomatic representatives enjoy during international crises.According to the Contract "officials" - citizens of the Member States appointed to the positions of directors of departments of the Eurasian Economic Commission and deputy directors of departments of the Commission, as well as the head of the Secretariat of the Court of the Union, deputy heads of the Secretariat of the Court of the Union and advisers to judges of the Court of the Union; Family members of officials living with them are exempt from state duties; are exempt from restrictions on entry into the host state and departure from it, from registration as foreigners and obtaining a temporary residence permit; They enjoy the same repatriation benefits that diplomatic representatives enjoy during international crises.

Employees are not subject to the jurisdiction of the judicial or administrative authorities of the receiving State with respect to actions performed in the direct performance of their official duties, except in cases of presentation:1) claims for damages in connection with a traffic accident caused by a vehicle owned or operated by an employee; 2) claims in connection with death or bodily injury caused by the actions of employees.According to the "employees" Agreement - citizens of the Member States who work in the Union's bodies on the basis of employment agreements (contracts) concluded with them and are not officials.Employees are exempt from restrictions on entry into and exit from the State of residence, registration as foreigners and obtaining a temporary residence permit.Members of the Board of the Commission, judges of the Court of Justice of the Union, officials, employees and members of their families shall enjoy the privileges and immunities provided for in the Regulations governing their entry into the territory of the receiving State on their way to their destination or, if they are already in this territory, from the moment when the members of the Board of the Commission, judges of the Court of the Union, officials, employees began to perform their powers (official (official) duties).Upon termination of the powers (performance of official duties) of a member of the Board of the Commission, a judge of the Court of the Union, an official or an employee, their privileges and immunities, as well as the privileges and immunities of their family members living with them, They are usually terminated at the time the person leaves the receiving State or after a reasonable period of time has elapsed for leaving the receiving State, whichever comes first. The privileges and immunities of family members cease when they cease to be family members of a member of the Board of the Commission, a judge of the Court of the Union, an official or an employee. However, if such persons intend to leave the receiving State within a reasonable period of time, their privileges and immunities shall remain in place until their departure.In the event of the death of a member of the Board of the Commission, a judge of the Court of Justice of the Union, an official or an employee, their family members who lived with them shall continue to enjoy the privileges and immunities granted to them until they leave the host State or until the expiration of a reasonable period for leaving the host State, whichever comes first.Immunities from administrative liability, the civil and criminal jurisdiction of a member of the Board of the Commission, a judge of the Court of the Union or an official in respect of everything said or written in the exercise of his functions and all actions performed as a member of the Board of the Commission, a judge of the Court of the Union or an official, shall remain with him even after termination of powers. This paragraph is valid without prejudice to cases of liability of members of the Board of the Commission, judges of the Court of the Union or officials provided for by the Treaty or international treaties within the Union.

Additional Commentthe main guarantor of equality of the parties is the court. The courts must ensure equal procedural status for the parties, but maintain their independence and impartiality. The provision of additional procedural guarantees is the main means of "equalization" based on the principle of fairness.__________________

6 Report by V. Lukashevich (European Court of Human Rights) at the international conference in the Supreme Court, 06.06.201.

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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