On 17 February 2012 the President of the country signed the Law “On Amendments to be introduced into certain legislative acts of the Republic of Kazakhstan on matters concerning improvement of appeal, cassational and supervisory order of proceedings, increase of level of confidence level and ensuring access to justice”(hereinafter –“Law”), entered into force on 1 July 2012.
By this article we would like to highlight the most significant new development in the civil procedure.
NOTIFICATIONS AND CALLS
Currently, persons participated in a case, as well as eye-witnesses, experts, specialists and interpreters can be notified of or called not only by a registered letter with the notice of receipt of delivery, telephone message or telegram, as it was earlier provided for, but with use of other means of communication, ensuring registration of the notification or a call (Article 129 of the Civil ) of the code of judicial practice (CPC) of the Republic of Kazakhstan dated 13 July 1999 No. 411-I).
Among them from 1st July of the year the court has a right to call persons, participating in a case, as well as eye-witnesses, experts, specialists and interpreters via short-text massages of cellular communication or via e-mail.
In accordance with the Law No.386-II “on Post” dated 8 February 2003 of the Republic of Kazakhstan, services of electronic mail shall be regarded to communication services, enabling users to exchange messages or documents without hard copies. The legal status of cellular communications such as electronic mail is clear for understanding, but as for so called “the text message through cellular communication” (hereinafter – SMS) it is not so expressly, as it may seem in the first place.
According to the Law No. 567-II of the Republic of Kazakhstan “On Cellular Communication” dated 5 July 2004 an operator of cellular communication shall ensure transfer of information short text messages in the State and in Russian languages.
At the first face, it may seem that introduction of notification at the law level, with such state-of-the-art means of communication will ensure performance of that persons participating in a case, as well as eye-witnesses, experts, specialists and interpreters will receive notifications and calls in good time. But let us consider, whether it is the same thing in practice.
For example: a secretary of the court forwards a message to e-mail specified by an complainant party or respondent party an agenda, which states: the party forwarding e-mail, time and send date, a recipient, subject of a message, priority and time of court proceeding. After that the secretary of the court prints out a paper with the details as well as scan copy of the agenda and files to case papers. Starting from this moment one recognizes that the court has duly performed his work, since the legislation does not give precise definition whether a person is deemed to be duly notified from the date of receipt of the message by e-mail or form a send date. In practice we can often observe cases when e-mail fails to reach a recipient due to existence of malicious software in computer of the sending party and a recipient, preventing exchange of electronic messages or due to impossibility to send in good time such a message due to the failure in work of service provider. To prove that electronic mail has not been received due to the fault of service provider is practically impossible, especially for the person who does have any special computer skills. At that one has to explain to the court a reason of absence. Which way can we present the evidence of failure to receive or ill-timed receipt of message via e-mail?
The same touches upon a subject on the receipt of notifications on appearance in court by SMS. Considering this method, a question arises, which way a secretary of a court will show evidence that SMS has been sent and what in this case will be evidence? Very often people participating in court procedures are in business trips over the territory of the republic, where the signal coverage of internet- or mobile communication is not available, whereby the person cannot receive a notification or a call in good-time and be present in a court proceeding. Besides, the human factor should also be noted, for example, a mobile phone can be lost, a person concerned does not track his incoming mail, At that, the court believes that its message has been sent and obligation of the court on notification has been met, accordingly.
ENTRY OF COURT DECREES OF A COURT OF APPEAL INTO LEGAL FORCE
Amendments were introduced into Article 368 of the RoK Civil Code. Starting from 1st July 2012, judicial acts of a court of appeal shall be effective from the date of its publication. The former term, according to which the judicial acts of the court of appeal come into force upon expiration of fifteen days from the dated of handing in a copy of a decision taken by a court shall remain unchanged, unless the Law comes into force.
On the first face, this introduction is oriented to ensure prompt and early consideration of cases in courts. Therefore. After a case has been considered in the civil and penal chamber of appeals, a party in favor of which such a decision has been taken , do may look to its early implementation by a procedure on execution of courts decisions.
However there is also the other side in implementation of this regulation. Let us suppose that an organization files an application to a court of primary jurisdiction for cancellation of notification to the revenue service concerning additional charge of taxes. According to paragraph 2 of Article 674 of the Tax Code, should a taxpayer file an application to a court, execution of the notification on results of the tax audit shall be suspended with respect to the part under consideration from the date of receipt by the court of the application for proceeding before its effect. A court proceeding has occurred. The court of primary jurisdiction has taken a decision on refusal from adjustment of claims stated by the claimer (a taxpayer). The claimer files an appeal against the decision taken by the court of primary jurisdiction. According to part I of Article 235 of the RoK CPC the decision of the court of primary jurisdiction shall come into upon expiration of a period for appeal, shout it be not appealed. Should it be appealed, the decision shall enter into force from the moment of publishing the decision by the court of appeal, and this introduction is entered into force from 1st July 2012. The court of appeal, having considered a claim, passes a judgment to keep it in force without changes, and dismiss an appeal. Taxation offices can use all the legal instruments provided for Article 86 of the Tax Code on enforcement recovery of tax debts by starting from the date of judgment by the court of appeal. Taxation offices shall wait for a fifteen day period before an effective date of the Law (according to Article 368 CPC of the RoK, court shall come into force upon expiration of fifteen days period for cassational appeal) before the day they take measures enforcement recovery of tax debts.
Therefore, one may say that amendments to the Civil Procedure Code are amid to avoidance red – tapery in courts and ensure prompt consideration of cases. However, to speak about application of these norms in practice is untimely.
