Comments to article 7. Administration of justice only by the court of the Civil Procedure Code of the Republic of Kazakhstan

1. Justice in civil cases is administered only by the court in accordance with the rules established by this Code.2. The appropriation of the powers of the court by anyone shall entail liability provided for by law.3. Decisions of extraordinary and other illegally established courts have no legal force and are not subject to enforcement.4. Decisions of a court that conducted civil proceedings in a case beyond its jurisdiction, exceeded its powers or otherwise significantly violated the principles of civil proceedings provided for in this Code, are illegal and subject to cancellation.5. Court decisions in a civil case may be reviewed and reviewed only by the relevant courts in accordance with the procedure provided for by this Code.1. Paragraph 1 of Article 75 of the Constitution, which establishes that "Justice in the Republic of Kazakhstan is administered only by the court," should be understood to mean that only courts, as bodies representing the judicial branch of Government, administer justice. The courts of the Republic are the Supreme Court, local and other courts of the Republic established by law, which are part of the unified judicial system of the Republic, which is established by the Constitution and the Constitutional Law on the Judicial System. According to paragraph 1 of Article 76 of the Constitution, judicial power is exercised on behalf of the Republic of Kazakhstan and is intended to protect the rights, freedoms and legitimate interests of citizens and organizations, ensure the implementation of the Constitution, laws, other regulatory legal acts, and international treaties of the Republic. All cases and disputes arising on the basis of the Constitution, laws, other normative legal acts, and international treaties of the Republic are subject only to the courts that are part of the judicial system of the Republic (paragraph 2 of article 76 of the Constitution).

It should be borne in mind that issues of interaction between the legislative and executive branches of government are provided for by the norms of the Constitution and are resolved by them using constitutional powers within the framework of conciliation procedures, or with the participation of the President of the Republic. - the guarantor of the unity of State power, the inviolability of the Constitution, ensuring the coordinated functioning of all branches of government (article 40 of the Constitution).In connection with the above, the judicial procedure for resolving disputes between the branches of government is unacceptable, since constitutional norms, by virtue of their supreme legal force and supremacy, are not challenged in courts and other bodies.The holders of judicial power are professional judges (article 79 of the Constitution), who are vested with powers in accordance with the procedure provided for by the Constitution and constitutional law. They administer justice through the forms of legal proceedings established by law (paragraph 2 of article 75 of the Constitution).At the same time, in order to prevent infringement of human and civil rights and freedoms or to create advantages for a certain category of persons, the establishment of any bodies with the functions and powers of courts is not allowed. And in this sense, a person and a citizen are equal in their rights and duties before the court, which is a state body endowed with the exclusive right to administer justice. Equality of all before the law means equality of individual rights and duties, equal protection of these rights by the State and equal responsibility of everyone before the law on the same grounds. Only laws may restrict human and civil rights and freedoms in the cases provided for in paragraph 1 of article 39 of the Constitution.Civil, administrative and criminal proceedings are conducted in accordance with procedures regulated by law.The Supreme Court is the highest judicial body in civil, criminal and other matters within the jurisdiction of local and other courts, supervises their activities in the procedural forms prescribed by law and provides explanations on judicial practice.Local and other courts include district and equivalent courts., as well as regional and equivalent courts. The District Court is a court of first instance, it hears court cases and materials attributed to its jurisdiction; exercises other powers provided for by law.District and equivalent courts are formed, reorganized, renamed and abolished by the President of the Republic of Kazakhstan on the proposal of the Chairman of the Supreme Court, agreed with the Supreme Judicial Council. The President of the Republic of Kazakhstan may establish one district court in several administrative-territorial units or several district courts in one administrative-territorial unit.Regional and equivalent courts are formed, reorganized, renamed and abolished by the President of the Republic of Kazakhstan on the proposal of the Chairman of the Supreme Court, agreed with the Supreme Judicial Council. The Regional Court considers court cases and materials attributed to its jurisdiction.; studies judicial practice and, based on the results of its generalization, considers issues of compliance with the rule of law in the administration of justice by the courts of the region; monitors the activities of territorial divisions of the authorized body in the regions, the cities of Astana and Almaty; exercises other powers provided for by law.Civil cases in the courts of first instance are considered by the judge alone, who acts on behalf of the court.

The consideration of cases in the courts of appeal is carried out by a collegial composition of the court in an odd number (at least three) of judges of the regional and equivalent courts, one of whom is the presiding judge, or the sole judge on appeal, protest against decisions made by district and equivalent courts in a simplified (written) procedure, private the complaint, a protest against definitions.Consideration of cases in the court of cassation instance is carried out by the collegial composition of the court in an odd number (not less than three) judges of the Supreme Court under the chairmanship of the chairman of the judicial board or one of the judges on his behalf. Cases on review of decisions of the court of cassation instance are considered in a collegial composition in an odd number (not less than seven) of judges under the chairmanship of the Chairman of the Supreme Court or one of the judges on his behalf.According to the Resolution of the Constitutional Council of April 14, 2006 No. 1 "On the official interpretation of paragraph 4 of Article 75 of the Constitution of the Republic of Kazakhstan", the constitutional norm that the establishment of special courts under any name is not allowed means a ban on the establishment of courts characterized by the following characteristics:1) the device, the competence and procedure for their creation are regulated by special normative legal acts, and not by the Constitution and constitutional law; 2) the administration of justice is carried out by them with exceptions from the procedure of judicial proceedings established by law for other courts, which creates conditions for infringement of the constitutional rights and freedoms of man and citizen; 3) their formation and functioning do not comply with paragraph 4 of Article 3 of the Constitution, the principle of separation of State power into legislative, executive and judicial branches, This is reflected in the organizational subordination or dependence of special courts on the executive branch of government.In a generalized form, the term "special court", contained in paragraph 4 of article 75 of the Constitution, is used to designate courts with at least one of these features. The CPC uses the term "extraordinary courts", which in essence reflects the constitutional prohibition on the creation of special courts.Unlike special courts, specialized courts provided for in paragraph 3 of Article 3 of the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" are an integral part of the unified judicial system of the Republic of Kazakhstan.Specialized courts should have the following characteristics, arising from the requirements of the Constitution:1) enter the unified judicial system of the Republic of Kazakhstan as local courts; 2) their place in the judicial system (equivalent to regional or other local courts) should be determined by the Constitutional Law "On the Judicial System and the status of Judges of the Republic of Kazakhstan"; 3) justice in specialized courts should be carried out through civil, criminal and other forms of legal proceedings established by law; 4) the jurisdiction of specialized courts should be established by law; 5) in relation to specialized courts, the possibility of reviewing court decisions should be fully ensured. The courts of appeal and cassation may act as appropriate specialized courts, as well as other courts, including the Supreme Court; 6) the organizational and legal structure and administration of justice in specialized courts should be based on the norms of the law, excluding the possibility of infringement of the constitutional rights of a person and citizen to judicial protection of their rights and freedoms, as well as equality of all before the law and the court.The listed characteristics of specialized vessels are the main features that distinguish them from special vessels.2. No one has the right to assign the functions of State bodies and courts. It is prohibited to issue legislative acts providing for the transfer of the exclusive powers of the court to other bodies. The powers of judicial bodies and judges cannot be appropriated by anyone. Such actions entail a prescribed measure of criminal, administrative and other liability. Appeals, applications, and complaints that are subject to judicial review may not be reviewed or monitored by any other authorities, officials, or other persons.3. Courts may be established only by authorized State bodies and in accordance with the procedure established by a special constitutional law. Any acts of extraordinary and other illegally formed courts are legally null and void from the moment of their adoption and are not subject to execution. Decisions of extraordinary and other illegally established courts have no legal force and are not subject to execution, since according to article 1 of the Constitutional Law "On the Judicial System and Status of Judges of the Republic of Kazakhstan" no other bodies and persons have the right to assume the powers of a judge or the functions of judicial power. In addition, the publication of legislative acts providing for the transfer of the exclusive powers of the court to other bodies is prohibited.4. In accordance with Article 26 of the CPC, civil cases are considered and resolved by district (city) and equivalent courts, with the exception of cases provided for in part four of Article 27 and Article 28 of the CPC. This provision is the main norm that establishes the rules for the jurisdiction of civil cases between courts, for their consideration in the first instance, therefore, all civil cases, with the exception of cases under the jurisdiction of other courts, must be considered in a district (city) and equivalent court. An exception is established for specialized courts, specialized court structures and the court of the city of Astana.Article 27 of the CPC regulates the jurisdiction of specialized inter-district economic courts, military courts, specialized inter-district juvenile courts, as well as the Astana City Court for investment disputes. The jurisdiction of the Supreme Court to consider civil cases according to the rules of the court of first instance is provided for in Article 28 of the CPC.Thus, one of the ways to improve the judicial system in the Republic of Kazakhstan is the specialization of courts aimed at improving the quality and timing of the consideration of cases in order to protect the rights and interests of citizens, legal entities and the state.In this regard, the courts, when receiving applications and court orders, should check whether the case is within the jurisdiction of this court. If the application is beyond the jurisdiction of the court to which it is filed, it is subject to return on the basis of subparagraph 2) of the first part of Article 152 of the CPC. If the court has considered and resolved a civil case that it does not have jurisdiction over, then the judicial act issued by the court is subject to cancellation in any case on the basis of subparagraph 1) of part four of Article 427 of the CPC.The list of grounds for revoking or changing a court decision on appeal is established by Article 427 of the CPC, each of which is a sufficient reason for revoking a judicial act, as it entails a violation of the principles of civil procedure.5. Court decisions in a civil case may be reviewed and reviewed only by authorized judicial authorities.

Section 3 of the CPC provides for the types of judicial review proceedings, namely: appeal and challenge of judicial acts that have not entered into force, on appeal; appeal and challenge of judicial acts that have entered into force, in cassation;

proceedings for the review of newly discovered or new circumstances of decisions, rulings and rulings that have entered into force; proceedings on the petition for the annulment of arbitral awards.Judicial acts are reviewed on appeal in accordance with Article 402 of the CPC by the Board of civil Cases of the regional and equivalent courts for decisions rendered by district and equivalent courts.; the specialized judicial board of the Supreme Court - for decisions rendered in cases considered under the rules of part four of Article 27 of the CPC;

as a sole judge - on decisions made by district and equivalent courts in the order of simplified (written) proceedings, on a private complaint, protest against definitions.In accordance with the cassation procedure, according to the first part of Article 434 of the CPC, judicial acts of local and other courts that have entered into force are reviewed if the appeal procedure is followed, as well as judicial acts of the specialized judicial board of the Supreme Court are reviewed by the cassation board of the Supreme Court.The second part of Article 434 of the CPC establishes a list of judicial acts that are not subject to review in accordance with the procedure, established by part one of this article.On the recommendation of the Chairman of the Supreme Court and the protest of the Prosecutor General, if there are grounds provided for in part six of Article 438 of the CPC, judicial acts of local and other courts that have entered into force in case of non-compliance with the appeal procedure, as well as in cases that are not subject to review on the above grounds, may be reviewed in cassation.In the cases provided for in part four of Article 434 of the CPC, judicial acts of local and other courts that have entered into legal force and are not subject to appeal., They can also be reviewed in cassation upon the protest of the Prosecutor General.In exceptional cases, decisions of the court of cassation may be reviewed by the Supreme Court (when the execution of the adopted decision may lead to serious irreversible consequences for life, human health or for the economy and security of the Republic of Kazakhstan; the adopted decision violates the rights and legitimate interests of an indefinite circle of persons or other public interests; the adopted resolution violates the uniformity in the interpretation and application of legal norms by the courts).In accordance with Article 456 of the CPC, a decision of the court of first instance that has entered into force is reviewed by the court that issued this decision based on newly discovered or new circumstances. The review of rulings, decisions, and decisions of the appellate and cassation instances, which amended the decision of the court of first instance or issued a new decision, based on newly discovered or new circumstances, is carried out by the court that changed the decision or issued a new decision.The powers of courts to review judicial acts by judicial authorities in the CPC are mandatory, therefore, deviations or exceptions from them are not allowed.

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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