Comments to Article 14. The language of legal proceedings of the Civil Procedure Code of the Republic of Kazakhstan

1. The legal proceedings in civil cases are conducted in the Kazakh language, along with Kazakh, the Russian language is officially used in court proceedings, and in cases prescribed by law, other languages.2. The language of the proceedings shall be determined by a court ruling depending on the language in which the statement of claim (application) is filed with the court. The proceedings in the same civil case are conducted in the language of the proceedings established initially.At the stage of preparing the case for trial, upon a written request from both parties, the court may, by ruling, change the language of the proceedings.If, during the preparation for the consideration of the case in the court of first instance, it became clear that the plaintiff does not speak the language in which his representative filed the statement of claim (application), then, at the written request of the plaintiff, the court issues a ruling on changing the language of the proceedings.3. Persons participating in the case who do not speak or do not speak the language in which the proceedings are conducted are explained and provided with the right to make statements, give explanations and testimony, file petitions, file complaints, challenge judicial acts, get acquainted with the case materials, speak in court in their native language or another language they speak; to use the services of an interpreter free of charge in accordance with the procedure established by this Code.4. In civil proceedings, persons who do not speak the language of the proceedings are provided free of charge by the court with the translation of the case materials required by law. Persons participating in the case are provided free of charge by the court with a translation into the language of the proceedings of that part of the court proceedings that takes place in another language.5. Court documents, the issuance of which has been requested in writing by a person participating in the case who does not speak the language of the proceedings, shall be handed to him in translation into his native language or another language that he speaks.6. After the completion of the preparation of the case for trial, documents submitted by the parties and other persons participating in the case must be accompanied by a translation into the language of the proceedings.1. The subject of this article is the consolidation of the principle of civil proceedings - the language of legal proceedings, the legal regulation of its application.The principle of the language of judicial proceedings is important for the protection of the rights and interests of subjects of civil proceedings and is based on the Constitution. Article 7 of the Constitution stipulates that Kazakh is the official language in the Republic of Kazakhstan. Russian is officially used in government organizations and local governments along with Kazakh. This provision of the Constitution is subject to application, taking into account the explanations given in the resolution of the Constitutional Council of May 8, 1997 No. 10/2, according to which the constitutional provision is understood unambiguously that in state organizations and local governments Kazakh and Russian languages are used equally, equally, regardless of any circumstances.

According to the Law "On Languages in the Republic of Kazakhstan", Kazakh is the official language of the Republic of Kazakhstan. The State language is defined by the language of public administration, legislation, judicial proceedings and record-keeping, operating in all spheres of public relations on the territory of the state. The law guarantees the official use of Russian on an equal basis with the Kazakh language.The commented norm provides for the possibility of considering cases in other languages only in cases where such rules are established by law.The meaning of the principle stated in this article is determined by the multinational composition of the population of the Republic of Kazakhstan, and is common and uniform for courts and judges of the Republic when considering all categories of court cases.2. In the commented norm, the court is charged with the duty of determining the language of the proceedings in civil cases when accepting a statement of claim. The language of the proceedings is determined based on the language in which the statement of claim is filed. The language of the proceedings is indicated in the ruling on the acceptance of the statement of claim for court proceedings and the initiation of a civil case.The established language of legal proceedings is the same when considering a case in the court of first instance, appeal and cassation instances. Changing the language of legal proceedings in other instances of civil procedure is unacceptable. This provision applies at all stages of the civil case proceedings: when making an application, conducting pre-trial preparation, considering the case at a court hearing, making a decision, appealing, appealing, reviewing judicial acts that have entered into force in cassation and under newly discovered or new circumstances, and executing decisions.The provisions on the observance of the principle of the language of legal proceedings apply to all persons involved in civil proceedings., including judges.Taking into account judicial practice, cases of changes in the language of legal proceedings are regulated in detail. It has been established that at the stage of preparing a case for trial, upon a written request from both parties, the court has the right to change the language of the proceedings, which the parties know to a greater extent. If the plaintiff or the applicant objects to changing the language of the proceedings, the proceedings shall be conducted in the language in which the statement of claim (application) was filed with the court.The court needs to find out from the persons participating in the case and the participants in the process whether they speak the language of the proceedings, whether they need an interpreter, and explain to them the right to give evidence and statements in their native language. In order to prepare a civil case for trial, the judge must find out from the plaintiff, the defendant, and other persons involved in the case whether they know the language in which the proceedings are conducted and whether they need the services of an interpreter. Usually, this is clarified during the conversation. You can find out what language you were educated in, where you live, where you work, and how well the questions are understood and answered. If any of the persons involved in the case does not speak the language of the proceedings, the court must at the same stage hand over to this person a copy of the statement of claim or (application) translated into his native language.Persons who do not speak the language of legal proceedings include: those who do not understand ordinary spoken speech in the language of legal proceedings, who do not know how to express their thoughts freely in this language, and who have difficulty speaking and reading texts.If, during the preparation for the consideration of the case in the court of first instance, it became clear that the plaintiff (applicant) does not speak the language, at which his representative filed a statement of claim (application), then at the written reasoned request of the plaintiff (applicant) The court issues a ruling on changing the language of the proceedings. An interpreter is provided to the defendant by the court. The supplement is also based on judicial practice, when a statement of claim (application) to the court is prepared by a representative of the plaintiff (applicant) in a language convenient for him to present the text, but which the plaintiff (applicant) does not speak well. The language of the proceedings is changed by a reasoned court ruling.The regulation of the grounds for changing the language of legal proceedings in order to prevent violations of the rights of persons involved in the case, to increase the guarantee of the constitutional right of citizens to judicial protection, will exclude unfounded complaints, petitions for violation by the court of the language of legal proceedings., which is an unconditional basis for the annulment of judicial acts.In any case, a violation of the rule on the language of judicial proceedings during the consideration of a case is an unconditional ground for the annulment of the decision of the court of first instance (subparagraph 3) of part four of Article 427 of the CPC) with the issuance of a new decision by the court of appeal. Also, the court of cassation, upon detection of such a violation, cancels the decision of the court of first instance, the decision of the court of appeal and sends the case for reconsideration to the appropriate court of first or appellate instance with a different composition of judges (subparagraph 4) of the second part of Article 451 of the CPC).Examples: According to the application of the Kyzylorda transport Prosecutor, filed in the interests of Zh., the parties filed a motion to consider the case in the official Kazakh language, which is their native language, and they speak it. The court, without discussing the petition, considered the case in Russian, in which the statement of claim was drawn up. This violation led to the cancellation of the court's decision and the referral of the case for a new hearing. The T Corporation filed a lawsuit against K. for recovery of property damage. The statement of claim was filed in Russian, which was left without motion by the court and subsequently returned to the plaintiff due to violations of the requirements for the content of the statement. The definitions are made in the language of the subject of the appeal - Russian. T Corporation filed a cassation appeal against the court's rulings in English, which was returned to it by the court of cassation due to a violation of the language of the proceedings. The arguments of the cassation appeal that the court should have provided him with a translation of the complaint were reasonably declared untenable. The language of the proceedings was established by the court initially, taking into account the language in which the statement of claim was filed, and this language has not been changed by the court. If it was convenient for the author of the cassation complaint to file the cassation complaint in English, he should have attached its translation. This article resolves this issue completely.

NP 3g-5071-15, archive of the Supreme Court.

3. The commented norm establishes guarantees for persons who do not speak or do not speak enough the language in which the proceedings are conducted, to make statements, give explanations and testimony, file petitions, file complaints, challenge judicial acts, get acquainted with the case materials, speak in court in their native or other language that they speak, to use the services of an interpreter free of charge in accordance with the procedure established by the CPC. These persons include: parties; third parties making independent claims on the subject of the dispute; third parties who do not make independent claims on the subject of the dispute; the prosecutor; state bodies, local governments, organizations or individual citizens who enter into the process on the grounds provided for in Articles 55 and 56 of the CPC; applicants and other interested persons in cases considered by the court in special proceedings (Article 302 of the CPC). This right is clarified and ensured by the court.If the application is filed in the official language, the court has the right to invite the plaintiff to submit all evidence in the official language. If the defendant is a person who does not speak the State language or the language of international communication, the court provides translation into the language that the defendant speaks.The lawyer's, representative's, expert's, or specialist's ignorance of the language in which the proceedings are conducted cannot serve as a basis for their exclusion from participation in the case. In such cases, the court is obliged to ensure the participation of an interpreter in the process.4. The parties, other persons participating in the case, and witnesses have the right to provide explanations and testimony in a language they speak, and to submit documents executed in a language other than Kazakh or Russian. In the course of preparing the case for trial, the court, by virtue of Article 170 of the CPC, is obliged to decide on the admission of an interpreter to participate in the trial. Persons participating in the case are provided free of charge by the court with a translation into the language of the proceedings of that part of the court proceedings that takes place in another language.The reason for the cancellation of the judicial act in the case of the LLP's claim for recovery of the amount was the presence in the case file of documents, including contracts on which the claims are based, drawn up in the official language, without translation. Meanwhile, people who did not speak the official language also took part in the process.________________

Bulletin of the Supreme Court, No. 4 for 2006.

The proceedings in the appellate and cassation instances must be conducted in the language in which the court decision was rendered. For collegial judges who take part in the consideration of the case in these instances and who do not speak the language of the proceedings, it is necessary to ensure the translation of court documents and the participation of an interpreter.Legal entities participate in court through the participation of either an organizational body or a representative (Article 57 of the CPC), therefore they are fully covered by the provisions of the commented article. If there is a written request to translate the court documents into the language spoken by the representative of the legal entity, the court is obliged to serve the documents in the language spoken by such representative. A legal entity may, in order to exercise its rights at a court hearing, request the court to participate in the process of an interpreter represented by a party to the case - a legal entity. When resolving this issue, the court must ensure that the translator has the necessary knowledge of the language. On the issue of the admission of such an interpreter to participate in the trial, the court issues a ruling on the submitted petition in accordance with Article 195 of the CPC and complies with the requirements of Article 191 of the CPC to clarify the duties of the translator and warn him of responsibility for deliberately incorrect translation.5. Court documents, the issuance of which has been requested in writing by a person participating in the case who does not speak the language of the proceedings, shall be handed to him in translation into his native language or another language that he speaks. The documents to be translated include rulings issued during a court hearing, court decisions, appeals, protests, as well as objections to them, appeals and decisions of the cassation board. At the request of the persons participating in the case and the participants in the process, other case materials may also be translated.6. A rule is established to ensure that the court provides free translation of documents submitted by the parties only at the stage of preparing the case for trial. When submitting documents by the parties after the completion of the preparation of the case for trial, the parties themselves must ensure their translation. The above will encourage the parties to provide and disclose evidence in a timely manner at the stage of preparing the case for trial.

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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