Hi,
This week i describe the civil procedure in Kazakhstan and how it goes
in our courts step by step starting from the pretrial settling end ending up
with the enforcement of a judicial decision.
The whole procedure has several steps in it, those are:
·
Pretrial;
·
Trial;
·
Appeal (all
instances: appeal, cassation, review);
·
Enforcement.
Overall duration of the procedure (from trial to enforcement) is up to
around 2 years. It should be noted, however, that the cases rarely reach the
stage of review because the Code provides limited grounds for it. Cases could
also be sent back to the court of the first instance if the higher instance
considers that not all circumstances where considered there or new
circumstances have popped up. Case may be terminated at every step of the procedure
upon parties’ will. Even after the decision has become legally binding, the law
gives some time to a debtor for a voluntary execution.
Pretrial
Pretrial step is where parties regulate their dispute by themselves
through official letters and other forms of negotiation.
Pretrial is the most important step of any dispute. This is the stage
where a prospective claim is formed and evidences are collected. Claimant
chooses an attorney and the initial strategy for a dispute.
Pretrial is not obligatory tough and a party may skip it if the contract
does not provide for any obligatory pretrial procedure. However, not so long
ago pretrial settling was a compulsory step for certain claims.
Pretrial step may last endlessly until a party decides to go in civil court
or arbitration to settle the dispute. Party has right to give rise to a claim
during three years (statute of limitations) from the moment it heard about the
violation of his rights (contractual or non-contractual).
Trial
This is the central part of the whole proceeding. The whole judicial
procedure is governed by the Code of Civil Procedure of the Republic of
Kazakhstan (“The Code”).
First, a claim must be filled to the relevant state court of the first
instance. It is crucial to:
·
respect rules of jurisdiction,
i.e. to file to the right court;
·
draft a sound claim meeting
the requirements of the Code;
·
pay the state duty
in the amount of 3% from the claim value for companies or 1% from the claim
value for individuals.
Once the claim is filed and referred to a specific judge the latter has
5 days to accept the claim, resolve a question, if any, to grant any
provisional measure (injunction) and to decide on the date of the preparatory
hearing which should be held in 7 days term from the date of acceptance of the
claim. On this stage the judge schedules the main hearing.
During the main hearing a case is resolved on merits. This is where the
court studies all presented evidence. It could consist of several hearings depending
on the complexity of the case. Onсe the
consideration of on merits is done; parties then participate in pleadings followed
by replies from each of the parties with the defendant having the right of a
last reply.
Judge then withdraws to his chambers to pronounce the decision. The
latter is not usually pronounced the same day. Parties wait, but no longer than
5 business days.
Appeal
Decision rendered by the court of the first instance becomes effective
only after 15 days from the date when the party got familiarized with the decision
provided that there has been no appeal. If no one appeals this would be the
simplest way of it. Unfortunately, there is usually a party not happy with the
outcome.
As mentioned earlier Kazakh procedural law has several instances of
appeal:
·
Appeal: case should
be considered and a judicial act be rendered within 1 month from the date when
the case has been taken by this court, but this term could be extended for up
to 1 month due to the necessity to consider new evidences and render a new
decision. Act of the court of appeal (decision, resolution or ruling) is
enforceable from the day it has been pronounced to the parties.
·
Cassation: party addresses directly to a cassation court within 6 month from the
date act of the court of appeal enter into force. This step takes one month.
Act of the cassation court takes form of a resolution which becomes effective
after its pronouncement.
·
Review: last stage
before enforcement proceedings, it is available to the parties during 1 year
after entry into force of the resolution of cassation court. Proceeding lasts
for 1 month.
Enforcement
Enforcement proceeding are governed by the Law “On the enforcement
system and the status of the judicial enforcement agents”.
Hope that the above information was useful for you,
See you soon,
Andrey
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