On the right of access to justice and the powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 15, 2016 No. 1.
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Noting the need to clarify issues arising in the practice of applying legislation on access to justice and the powers of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the Supreme Court) to review judicial acts and based on the results of the study of judicial practice, the plenary session of the Supreme Court
Decides:
When implementing the constitutional principle of everyone's right to judicial protection of their rights and freedoms, one should proceed from the explanations of the resolutions of the Constitutional Council of the Republic of Kazakhstan (hereinafter – the Constitutional Council). No. 7/2 of March 29, 1999 and No. 12 of December 1, 2003 stating that:
The norm of paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) means the right of any person and citizen to apply to the court for protection and restoration of violated rights and freedoms, with the exercise of this right on the basis and in accordance with the procedure established by law.;
The principle of equality before the law, guaranteed by paragraph 1 of article 14 of the Constitution, means that it is the laws that define specific conditions and circumstances that allow the realization of human and civil rights and freedoms.;
The right to judicial protection is a constitutional guarantee of human and civil rights and freedoms, which belongs to a citizen of the Republic of Kazakhstan, a foreigner and a stateless person.
Paragraph 3 of article 4 of the Constitution establishes that international treaties ratified by the Republic are an integral part of the current law, take precedence over laws and are applied directly, except in cases where it follows from an international treaty that its application requires the publication of a law. In this regard, when applying the legislation of the Republic of Kazakhstan regulating the right to access to justice or judicial protection, it is necessary to take into account the following generally recognized norms and principles of international law:
Everyone has the right to effective redress by the competent national courts in cases of violation of his fundamental rights granted to him by the Constitution or law (article 8 of the Universal Declaration of Human Rights, adopted by resolution 217 A (III) of the UN General Assembly on December 10, 1948);
All persons are equal before courts and tribunals, and everyone has the right, when considering any criminal charge against him or when determining his rights and obligations in any civil proceeding, to a fair and public hearing by a competent, independent and impartial court established by law (article 14, paragraph 1, of the International Covenant on Civil Rights and Political Rights, New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91-III, entered into force in the Republic of Kazakhstan on April 24, 2006).
In accordance with paragraph 1 of article 75 of the Constitution, justice is administered only by the court. The main characteristics of the legal mechanism for the implementation of everyone's constitutional right to judicial protection in the courts are given in the explanations of the Constitutional Council that:
Everyone's right to judicial protection of their rights and freedoms includes the right to judicial appeal against actions and decisions that have resulted or may result in infringement (violation) of human and civil rights and freedoms (Constitutional Council Resolutions No. 7/2 of March 29, 1999 and No. 1 of January 24, 2007);
By itself, filing a complaint against a decision that has entered into force does not entail its mandatory review (Constitutional Council Resolution No. 1/2 of February 24, 1997);
Everyone's right to judicial protection is exercised on the basis and in accordance with the procedure established by law (Constitutional Council Resolutions No. 7/2 of March 29, 1999 and No. 19/2 of November 1, 2000).
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
According to article 81 of the Constitution, the Supreme Court is the highest judicial body in civil, criminal and other matters within the jurisdiction of local and other courts, and in cases provided for by law, it examines court cases within its jurisdiction and provides clarifications on judicial practice.
By exercising these constitutional powers, the Supreme Court ensures a uniform interpretation and application of the law in the conduct of legal proceedings.
The uniformity of judicial practice, characterized by uniform approaches to the interpretation and application of legal norms by courts, is achieved not only through the adoption by the Supreme Court of normative rulings clarifying issues of judicial practice, but also as a result of the cassation review of judicial acts of lower courts. At the same time, the activity of the Supreme Court in reviewing judicial acts aimed at ensuring their legality, validity and fairness is crucial for the formation of judicial practice.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The achievement of uniformity of judicial practice is conditioned by the tasks of ensuring legality, protecting the constitutional rights and freedoms of man and citizen, therefore, the cassation review is associated with their high social significance, as well as importance for the development of law, its uniform interpretation and application.
Based on these tasks, the procedural legislation defines the grounds for cassation review of judicial acts:
violation of uniformity in the interpretation and application of legal norms by courts (subitem 3) of part 6 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), subitem 3) of part six of Article 169 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (hereinafter - APPC); subitem 3) of part five of Article 851 of the Administrative Code of the Republic of Kazakhstan offenses (hereinafter referred to as the Administrative Code);
threat of serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan, violation of the rights and legitimate interests of an indefinite circle of persons or other public interests (sub-paragraphs 1), 2) of part 6 of Article 438 of the CPC) sub-paragraphs 1), 2) of part six of Article 169 of the CPC; sub-paragraphs 1), 2) Part five of Article 851 of the Administrative Code;
incorrect application of criminal and criminal procedure laws, resulting in specific judicial errors (part 1 of Article 485 of the CPC);
encroachment on state or public interests, on the security of the state, threat of serious irreversible consequences for human life and health, conviction to life imprisonment (subparagraphs 1), 2) of part 2 of Article 485 of the CPC).
Thus, in order to ensure the rule of law and uniformity of judicial practice, overcoming the legal force of a judicial act in cassation is exceptional, that is, limited by special grounds.
The possibility of cassation review of court decisions under the specified procedural conditions is an additional legal guarantee of the realization of everyone's constitutional right to judicial protection of their rights and freedoms.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its 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
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