Comments to Article 16. Assessment of evidence based on internal conviction of the Civil Procedure Code of the Republic of Kazakhstan

1. A judge evaluates evidence according to his inner conviction, based on an impartial, comprehensive and complete examination of the evidence available in the case in their entirety, guided by the law and conscience.2. No evidence has a pre-determined force for the court.1. The assessment of evidence is important for making a lawful and reasonable decision on the dispute under consideration.The commented article on the scope of application applies to judges and is carried out at all stages of the process, starting with the initiation of proceedings in court. The judge's observance of the procedural law in the proceedings is a crucial component in the evaluation of evidence.It is the court that determines the relevance, admissibility, reliability and sufficiency of evidence to reach a lawful and fair verdict. These categories of evidence assessment oblige the court to admit and examine only those evidence that is relevant to the case, i.e. They can confirm or refute the circumstances referred to by the persons involved in the case, using only evidence provided by law and certain means of proof in certain categories of cases (Articles 64, 65 of the CPC). Thus, when evaluating a transaction made orally, the court is guided by the provisions of Article 153 of the Civil Code, which provides that failure to comply with the simple written form of the transaction deprives the parties of the right in the event of a dispute to confirm its commission, content or execution by testimony. The reliability of evidence means that the information that is supported by this evidence is true.The comprehensiveness and completeness of the investigation of the evidence in the case implies the need to obtain and examine evidence to such an extent that they are sufficient for a true conclusion. When considering a case, the court is obliged to directly examine the evidence and other circumstances of the case itself, including using videoconferencing, namely: to listen to the explanations of the parties and other persons involved in the case, witness statements, expert opinions, to get acquainted with written evidence, inspect physical evidence, listen to sound recordings, view video recordings, film recordings, etc., photographic materials, to get acquainted with the materials of other media of information transformation. When examining written evidence, if necessary, the court hears consultations and explanations from a specialist (Article 186 of the CPC). When carrying out procedural actions outside the courtroom (for example, the need for on-site inspection) These actions are carried out by the same judge who is reviewing the case. The exception is cases when the court needs to collect evidence in the order of a court order. In these cases, the court examines the materials collected by way of a court order by reading them out at a court hearing, and the persons participating in the case have the right to provide explanations on these proofs.All evidence must be assessed in its entirety, the sufficiency of which is determined by the court to reach a certain conclusion (Article 68 of the CPC). The assessment of evidence based on the internal conviction of the court is that the judge must resolve the dispute according to the law and according to conscience. The category of legality of a judge's actions includes: only the court decides which evidence is reliable, whether it contains the truth or not, whether this evidence relates to the case under consideration and whether it is sufficient for a certain conclusion; the court impartially evaluates the evidence presented in support of the stated claims, comparing them with the evidence presented by the defendant or other persons involved in the case; the court accepts either some evidence or others based on its inner conviction; making a decision in the conference room.The category of a judge's impartiality and his inner conviction are not fixed in the civil procedure legislation. They are formed by the judge depending on the level of training of judges, attitude to the case, professional experience of the judge, etc. However, it is possible to single out separate criteria for the formation of the judge's inner conviction. These include: taking into account all the evidence presented during the trial; their free assessment from the standpoint of the requirements of the law without the intervention of other factors.; the validity of a belief as a requirement of substantive law; the judge's personal knowledge and life experience.The impartiality of a judge is manifested in consistency in making decisions and performing actions, which is expressed in identical decisions and actions towards different persons in the same circumstances. The word "conviction" in the explanatory dictionaries of the Russian language by Dahl V.I. and Ozhegov S.I., Shvedova N.Yu. is interpreted as "something in which someone is convinced, confident, firmly and judiciously believes, or a firmly established opinion, a confident view of something, a point of view."

Thus, the judge's inner conviction should be understood as the judge's established opinion on a particular dispute based on a study of all the evidence presented to the court, in strict accordance with the requirements of the procedural law and with the correct application of substantive law.When evaluating written evidence (documents, contracts, letters, etc.), it is necessary to verify the identity of the submitted documents in copies, photocopies with the original. To verify the submitted written evidence in a copy or photocopy, the court must verify the identity of the copy of such evidence to its original, find out under what circumstances the copy or photocopy was made, and how it was preserved. If the copy is notarized, then it is necessary to check compliance with the procedure and registration of written evidence by a notary. When examining written documents, the court must ensure that the document or other written evidence comes from a person authorized to present this type of evidence, is signed by a person authorized to do so, and whether all other details required for the written document have been observed.When evaluating the testimony of witnesses, the sequence of the witness's explanations, his awareness of the legal relationship being dealt with by the court, the witness's interest in resolving the dispute, the witness's attitude towards the plaintiff, the defendant, and third parties are taken into account., if the latter are involved in the case (relative, friends, neighbors, work colleagues), the presence of hostile relations.2. No evidence may have a pre-determined force for the court. In the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On the judicial decision" it is clarified that the expert's opinion does not have an advantage over other evidence and is not binding on the court, it must be evaluated in conjunction with other evidence. When evaluating the expert's opinion, the court must indicate in the reasoning part of the decision on what the expert's conclusions are based on, whether the materials examined submitted for examination are complete, and whether the expert has made an appropriate analysis.Additional comment1. The legality and validity of the decision taken in the case depends on the court's compliance with the principle of an objective assessment of evidence.2. The establishment of a principle in a specific norm stating that no evidence has a predetermined force, is consistent with and actually implements the provisions of part one of this article, requires a judge to objectively evaluate each evidence that the court, at its discretion, cannot recognize as having a predetermined force.

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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