On some issues of the application of the principle of the language of judicial proceedings
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 13.
In order to form a uniform judicial practice and the correct application of legislation on the language of judicial proceedings, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
In accordance with article 7 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), Kazakh is the official language in the Republic of Kazakhstan. Russian is officially used in government organizations and local governments along with Kazakh. The state takes care of creating conditions for the study and development of the languages of the people of Kazakhstan.
According to article 3 of the Law of the Republic of Kazakhstan dated July 11, 1997 No. 151-I "On Languages in the Republic of Kazakhstan", the legislation on languages in the Republic of Kazakhstan is based on the Constitution, consists of this law and other normative legal acts concerning the use and development of languages.
The application of the principle of the language of judicial proceedings is a legal guarantee of ensuring the protection of the rights and freedoms of persons participating in the judicial process.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In accordance with the requirements of Article 14 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the language of legal proceedings is determined by a court ruling depending on the language in which the statement of claim (application) is filed with the court.
At the stage of preparing the case for trial, the court must find out whether the plaintiff (applicant) has sufficient knowledge of the language in which the claim is filed, whether he understands the essence and content of the proceedings. In case of receipt of a corresponding written request from the plaintiff (applicant) The court issues a reasoned ruling on changing the language of the proceedings. Taking into account the principle of equality of the parties, the court is obliged to find out the opinion of the defendant on this issue.
Article 30 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) provides that criminal proceedings are conducted in the Kazakh language, along with Kazakh, Russian and, if necessary, other languages are officially used in court proceedings.
During the pre-trial investigation, the body (official) conducting the criminal process must explain to the suspect (accused) his rights and obligations regarding the language of legal proceedings, including the right to seek the help of a lawyer.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In accordance with the requirements of Article 738 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), proceedings on administrative offences are conducted in the official language, and if necessary, Russian or other languages are used in the proceedings along with the state language.
A judge, authorities (officials) authorized to consider cases of administrative offenses must explain to persons brought to administrative responsibility their rights and obligations regarding the language of legal proceedings and ensure that their interests are protected in accordance with the procedure established by law.
In accordance with the legislation, persons participating in the case who do not speak or do not sufficiently speak the language in which the proceedings are conducted are provided with the right to make statements, give explanations and testimony, file petitions, and speak in court in their native or other language that they speak.
It should be borne in mind that persons who do not speak or do not sufficiently speak the language in which the proceedings are conducted include persons who do not understand or do not sufficiently understand speech in the language of the proceedings, cannot freely express their thoughts and opinions in this language, and also experience other difficulties when talking, reading texts, giving answers to questions, in oral and (or) written speech.
The authorities conducting the proceedings must ensure to the persons participating in the proceedings their right to free translation of the case materials required by law, set out in another language, into languages that these persons speak or understand, and to use the services of an interpreter free of charge.
In accordance with the requirements of part one of Article 81 of the CPC, part two of Article 39 of the CPC and part one of Article 758 of the Administrative Code, an uninterested person who is not in official dependence on the authorities and persons involved in the case, whose qualifications are sufficient to translate and clarify the circumstances relevant to the case, is involved as an interpreter.
The costs associated with production in the language spoken by the participants in the process and the participation of an interpreter in this regard cannot be an obstacle to the exercise of the rights of the persons involved in the case to use one or another language they speak.
7-1. In accordance with the fifth part of Article 30 of the CPC, it is mandatory to provide a written translation of the documents to be served to the participants in the process.
The documents that, in accordance with the CPC, must be handed over to the suspect or accused at the pre-trial stage include: a copy of the court's decision authorizing detention as a preventive measure (part ten of Article 148 of the CPC); a copy of the decision recognizing the person as a suspect (part two of Article 202 of the CPC); a copy of the search or seizure protocol (part four of Article 256 of the CPC); a copy of the decision to terminate the pre-trial investigation (Article 288 of the CPC); the indictment (Article 304 of the CPC) and other procedural documents, the delivery of which is expressly provided for by the CPC.
The defendant, convicted, and acquitted person must be served with: a decision to terminate the criminal case (Article 327 of the CPC); a copy of the judge's decision to change the defendant's preventive measure or change the list of persons to be summoned to court, a new wording of the charge if the prosecutor changed the charge in court (Article 329 of the CPC); a copy of the verdict (Article 404 of the CPC); a copy of the appeal (private) complaint and protest (part two of Article 420 of the CPC), etc.
In order to comply with the secrecy regime, the original and translation of documents containing information constituting state secrets or other legally protected secrets are handed over to participants in the criminal process only for review. Making a copy is prohibited. Upon completion of the review, the original and translation of such documents are stored in the case file in a separate closed envelope (package), taking into account the requirements of the legislation on state secrets of the Republic of Kazakhstan.
The footnote. The regulatory resolution was supplemented by paragraph 7-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
After completing the preparation for the trial in civil cases, the parties who provided documents and other materials not in the language of the proceedings, provide their own translation.
In accordance with the requirements of part two of Article 475 of the CPC, documents drawn up in a foreign language, when submitted to the courts of the Republic of Kazakhstan, must be accompanied not only by a duly certified translation into the language of the proceedings, but also, at the request of the parties involved in the proceedings, by a translation into their native language or another language they speak.
If a witness who has the right to defend himself, a suspect, an accused, a defendant, a convicted person, an acquitted person, and a person who is being investigated for an administrative offense do not speak or do not speak the language of legal proceedings, then a lawyer must participate in the trial. His chosen lawyer's ignorance of the language of legal proceedings cannot be an obstacle to his participation in the process.
9-1. Combining the functions of an interpreter by a judge, prosecutor, investigator, or inquirer is a significant violation of the law on the language of judicial proceedings and is unacceptable. There should be no involvement as an interpreter of persons who are held accountable for committing administrative or criminal offenses, as well as those serving sentences.
The footnote. The regulatory resolution was supplemented by paragraph 9-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
When selecting candidates for jurors to participate in the trial, the presiding judge has the right to ask a question about the degree of proficiency of the candidate for jurors in the language in which the proceedings are conducted.
Persons who do not speak the language in which the proceedings are conducted, without discussion with the participants in the process, are relieved by the presiding judge of their duties as jurors.
The procedural documents adopted in the case are drawn up in the language of the proceedings.
When drafting procedural documents, it is necessary to pay attention to the requirements for their content and the language of legal proceedings in terms of compliance with linguistic (linguistic) rules.
In cases provided for by procedural legislation, it is the responsibility of the authorities conducting the proceedings to provide copies of certified documents with translations for persons who do not speak the language of the proceedings.
11-1. The court, at the request of the participants in the process or on its own initiative, has the right to make a decision on changing the language of the proceedings and continue consideration of the case in the state (Kazakh) language.
The footnote. The regulatory resolution was supplemented by paragraph 11-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
When appealing (protesting) the procedural actions committed in the case, as well as the judicial acts issued in the case, the participants in the process must comply with the requirement of the established language of the proceedings.
In case of non-compliance with this requirement, the submitted complaints (petitions, protests) are subject to return for adjustment to the norms of the procedural legislation.
Failure to comply with the requirements of the legislation on the language of judicial proceedings is a significant violation of the procedural law and entails the cancellation of judicial acts.
If a violation of the language of the proceedings is found at the stage of resolving the issue of accepting the case for trial, the court, in accordance with the requirements of article 323 of the CPC, returns the case to the prosecutor to eliminate violations.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
When writing the names of codes, laws, other regulatory legal acts, names of state bodies, other organizations and institutions in procedural acts, the established rules for writing them must be observed.
Please note that terms and names (of legal entities, organizations, localities, etc.) given in other languages must be indicated in accordance with the rules of transliteration.
The surnames, first names, and patronymics of the participants in the process should be reflected in the acts in exact accordance with the documents certifying their identity.
In accordance with the requirements of Article 6 of the Law of the Republic of Kazakhstan dated January 29, 2013 No. 73-V "On Identity documents", identity documents, together with the passport and identity card of a citizen of the Republic of Kazakhstan, include their diplomatic, foreign, official passports, a residence permit for a foreigner in the Republic of Kazakhstan, certificates of a person without citizenship, seafarer, refugee, return certificate, birth certificate.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.
Chairman
The Supreme Court
Republic of Kazakhstan
Judge
The Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
K. MAMIE
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
