Comments to Article 66. Information inadmissible as evidence of the Civil Procedure Code of the Republic of Kazakhstan

1. Information about facts is recognized by the court as inadmissible as evidence if it was obtained in violation of the requirements of this Code by depriving or restricting the legally guaranteed rights of persons participating in the case who influenced or could have influenced the reliability of the information about the facts, including:1) with the use of violence, threats, deception, as well as other illegal actions; 2) using the misconception of a person participating in the case regarding their rights and obligations arising from the lack of explanation, incomplete or incorrect explanation of them to this person; 3) in connection with the conduct of a procedural action by a person who does not have the right to conduct proceedings in this civil case; 4) in connection with the participation in the procedural action of a person subject to recusal; 5) with a significant violation of the procedure for the procedural action; 6) from an unknown source or from a source which cannot be established at a court hearing; 7) using methods of proving, contradicting modern scientific knowledge; 8) by special fabrication or modification of the content in order to substantiate or refute the arguments of the party or other persons participating in the case.2. The inadmissibility of using information as evidence in the course of proceedings in a case shall be established at the discretion of the court or at the request of the persons participating in the case.3. Evidence obtained in violation of the law shall be deemed to have no legal force and cannot be used as the basis for a court decision, as well as used in proving any circumstance relevant to the case. Such evidence can be used to prove the fact of violations and the guilt of those who committed them.4. In case of non-settlement of the dispute (conflict) by way of mediation, the evidence obtained by the judge during his mediation in court may not be presented by him to the judge in charge of the case.This article establishes the rules of negative admissibility - special rules prohibiting the use of certain information as acceptable evidence. The reason for the inadmissibility of the information specified in this article is a violation of the requirements of the CPC on the procedure for obtaining evidence.1. Information about facts is recognized by the court as inadmissible as evidence if it is obtained in violation of the requirements of the CPC. These violations are related to the deprivation or restriction of the legally guaranteed rights of the persons involved in the case. The list of rights of the persons participating in the case is specified in the first part of Article 46 of the CPC.The very fact of a violation of the established procedure for obtaining information is sufficient to recognize it as inadmissible evidence, regardless of whether or not these violations affected the reliability of the information received.This article lists some of the grounds for the inadmissibility of evidence.1.1. Evidence obtained with the use of violence, threats, deception, as well as other illegal actions is unacceptable. The World Health Organization in its report "Violence and its impact on health. The World Situation Report defines violence as "The deliberate use of physical force or authority, whether actual or in the form of a threat, directed against oneself, another person, group of persons, or community, resulting in (or highly likely to result in) bodily injury, death, psychological trauma, developmental disabilities, or various kinds of damage.". This definition emphasizes the premeditation and actual commission of an act of violence, regardless of its outcome. The expression "use of physical force or authority" should be understood, in particular, as neglect, any kind of ill-treatment (physical, sexual or psychological), as well as murder and any attempt on one's own life or health.

The meaning of the word "violence" is the use of physical force against someone; the use of force to achieve something, the coercive effect on someone, anything; oppression, lawlessness, abuse of power. A threat is intimidation, a promise to harm someone, evil. Deception is defined as the same as a lie, a statement that obviously does not correspond to the truth and is expressed in this way consciously. In everyday life, lying refers to the deliberate transmission of factual and emotional information (verbally or non-verbally) in order to create or maintain a belief in another person that the sender himself considers to be untrue.__________________30 Violence and its impact on health. Report on the situation in the world /Edited by Etienne G. Kruga and others/Translated from English - Moscow: Publishing house "The Whole World", 2003. - p. 32 //chrome extension://mhjfbmdgcfjbbpaeojofohoefgiehjai/index.html 31 S.I. Ozhegov, N.Y. Shvedova. Explanatory dictionary of the Russian language (online version) //http://www.classes.ru/all-russian/russian-dictionary-Ozhegov-term-19056.htm

The commission of violence, threats, deception, as well as other illegal actions are also subject to proof.Inadmissible evidence may also be obtained by illegal actions other than those indicated.The inadmissibility of such evidence is due to the fact that such evidence was obtained by depriving or restricting such human rights and freedoms guaranteed by the Constitution as the right to life, personal freedom, and inviolability of dignity (articles 15, 16, and 17).1.2. The evidence obtained by using the misconception of the person participating in the case regarding his rights and obligations is unacceptable.Explaining to the persons participating in the case their procedural rights and obligations is an important procedural action of the court, the obligation of which is specified in the norms of the CPC on the principle of competition, the actions of the judge in preparing the case for trial, and conducting a court session (part four of Article 15, subparagraph 3) of Article 165, Article 194 of the CPC). The procedural consequence of non-compliance by the court with these norms is the recognition as inadmissible of evidence obtained using a person's misconception about their rights and obligations resulting from an unexplained, incomplete or incorrect explanation of them to this person.1.3. The evidence obtained as a result of the procedural action of a person who does not have the right to conduct proceedings in this civil case is inadmissible. Thus, it is unacceptable to transfer the execution of a court order to court technicians, for example, to receive written explanations from a person involved in the case or to inspect material evidence, etc., since such actions can only be performed by a court.1.4. Challenges in civil proceedings are designed to ensure the objectivity and impartiality of the court considering the case, or of persons participating in the trial as a prosecutor, expert, specialist, interpreter, and court session secretary.These persons are dismissed by virtue of the procedural presumption of their partial32 if there are legal facts specified in the law as grounds for recusal (self-recusal).The rules on the grounds for recusal (self-recusal) of judges and other persons are formulated in an imperative form: these persons cannot participate in the consideration and resolution of the case and, they are subject to recusal (self-recusal) if there are grounds specified in the law (Articles 38, 39 of the CPC). It is assumed that either the persons themselves (recusal) or the persons participating in the case (recusal) should be aware of the obstacles to participation in the case of these persons.1.5. The rules of the CPC regulate the procedure for conducting procedural actions. A significant violation of this procedure entails the inadmissibility of proof. Such a violation of the established procedure is significant, which may lead to doubts about the reliability of the evidence obtained (for example, if a witness is questioned without warning him about criminal liability for giving false testimony).1.6. In the legal literature, an appropriate source of evidence is traditionally one of the mandatory criteria for the admissibility of evidence. The source of evidence is either a person or a thing._____________________32 See details: Serikov Yu.A. Presumptions in civil proceedings // chrome-extension://mhjfbmdgcfjbbpaeojofohoefgiehjai/index.html 33 Vaneeva L.A. Judicial cognition in the Soviet civil process.  Vladivostok: Publishing House of the Far Eastern University, 1972. 182 p.

The parties and other persons involved in the case must confirm their statements with evidence. The witness must indicate the source of his knowledge. The testimony of a person is not recognized as evidence if he cannot indicate the source of his knowledge (part one of Article 80 of the CPC). The expert in his conclusion indicates the methods used in the study (part three of Article 92 of the CPC). Documents must be submitted to the court, as a rule, in originals (part five of Article 68, part five of Article 100 of the CPC). These rules are aimed at establishing and verifying the source of information about the facts. If the source of the information is unknown or cannot be established by the court, then the information received about the facts is also inadmissible evidence.1.7. Acceptable evidence can be obtained only using methods that do not contradict modern scientific knowledge. This means that the use of certain methods must be justified by reference to existing scientific sources.1.8. Information about facts can be obtained by making them specially or changing the content, for example, by editing audio and video recordings or photographic materials, changing the text of the document by replacing intermediate sheets that are not signed or otherwise certified. The production or modification of the content of the source of evidence is aimed at substantiating or refuting the arguments of the persons involved in the case. Such evidence is unacceptable due to its unreliability and deliberate distortion of information about reality.2. The admissibility of evidence is recognized by the court (see commentary to Article 65 of the Civil Code). Accordingly, the court also recognizes the inadmissibility of evidence.The inadmissibility of using information as evidence is established at the discretion of the court, that is, even in the absence of any requests for this from the persons involved in the case, since checking the admissibility or inadmissibility of each evidence is the procedural duty of the court. To do this, the court first verifies the information, establishes the conformity of their receipt with the established procedure and concludes (recognizes) its admissibility or inadmissibility.The persons participating in the case have the right to challenge the admissibility of evidence presented by other persons participating in the case. A petition for the inadmissibility of evidence must be justified with reference to a specific violation of the law, including the one directly provided for in the first part of Article 66 of the CPC, which entails the procedural impossibility of using information as evidence in the case.3. The rule of the third part of Article 66 of the CPC is based on the constitutional provision that evidence obtained by illegal means has no legal force (subparagraph 9) of paragraph 3 of Article 77 of the Constitution).The legal force of evidence in the legal literature is defined as the existence of the legal viability to refer to them in the process of proving, using them in order to establish circumstances relevant to the case and to make a decision on it. The only unconditional basis for recognizing evidence as unenforceable are the facts of violations of the law related specifically to the very receipt of them (collection, consolidation)________________34 Nekrasov S.V. The legal force of evidence and its provision in criminal proceedings. The abstract. Dissertation of the candidate. jurid. Sciences, 2005 // http://lawtheses.com/yuridicheskaya-sila-dokazatelstv-i-ee-obespechenie-v-ugolovnom sudoproizvodstve

Evidence obtained in violation of the law may not be used by a person involved in the case to prove any circumstance relevant to the case. Such evidence is rejected by the court, indicating in the decision that the evidence was obtained in violation of the law (part five of Article 226 of the CPC).The only exception to the established rule is the possibility of using evidence obtained in violation of the established procedure to prove the fact of violations and the guilt of those who committed them. This rule can be used by the court when making a private ruling in accordance with Article 270 of the CPC.4. The concept of mediation is given in Article 2 of the Law "On Mediation".The possibility and specifics of mediation by a judge of the first or appellate instance are established by parts three and four of Article 179 of the CPC.The CPC stipulates that for mediation in the court of first instance, the case is transferred to another judge. At the request of the parties, mediation may be conducted by the judge in charge of the case. This may be important for regions where there are small-scale courts and it is not possible to transfer the case to another judge.The fourth part of Article 66 of the CPC stipulates that in the event of non-settlement of a dispute (conflict) through mediation, the evidence obtained during mediation in court cannot be presented to the judge in charge of the case. This is consistent with paragraphs 1, 2 of Article 8 of the Law "On Mediation", which states that participants in mediation may not disclose information that became known to them during mediation without the written permission of the mediation party that provided this information. Such evidence may be documents containing information constituting personal, family secrets, etc., revealing the depth of the conflict and the true content of the mutual claims of the parties.It is the right of the party to submit or not submit them to the judge, who will subsequently consider the case in case of failure to reach an agreement. If such evidence is relevant to the case and is requested by the court, but not presented within the prescribed time, then the consequences provided for in part nine of Article 73 of the CPC may occur.This rule on the inadmissibility of evidence also applies to cases when: the terms of the agreement on the settlement of a dispute (conflict) in mediation have not been approved by the court (part three of Article 180 of the CPC); Mediation was conducted by the judge in charge of the case (part four of Article 179 of the CPC).The established prohibition on providing evidence applies only to the judge who conducted the mediation, and does not deprive the party who provided evidence in the mediation procedure of the right to present this evidence to the court after the resumption of the trial.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

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