Comments on article 35. Composition of the Court of the Civil Procedure Code of the Republic of Kazakhstan

1. Civil cases in the court of first instance are considered and resolved by the judge alone, who acts on behalf of the court.

2. Civil cases provided for in part four of Article 27 of this Code shall be considered and resolved in the Astana city court solely by a judge according to the rules of the court of first instance.

3. Civil cases provided for in Article 28 of this Code shall be considered and resolved in the Supreme Court of the Republic of Kazakhstan solely by a judge according to the rules of the court of first instance.

4. Cases in the court of appeal shall be considered by a collegial court consisting of an odd number (at least three) of judges of the regional and equivalent courts, one of whom is the presiding judge, or a single judge in accordance with Article 402 of this Code.

5. 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 of the Republic of Kazakhstan under the chairmanship of the chairman of the judicial board or one of the judges on his behalf.

6. Cases on the 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 of the Republic of Kazakhstan or one of the judges on his behalf.

7. The composition of the court for the consideration of a particular case is formed taking into account the workload and specialization of judges in a manner that excludes the influence on its formation of persons interested in the outcome of the trial, including through the use of an automated information system.

8. A case initiated by one judge or a court panel must be considered by the same judge or court panel.

Cases on disputes arising within the framework of the rehabilitation and bankruptcy procedures, including the recognition of transactions concluded by the debtor as invalid, on the return of the debtor's property, on the recovery of receivables from claims of the bankrupt or rehabilitation manager, are considered by the same judge who made the decision on the application of the rehabilitation procedure or on declaring the debtor bankrupt, except for with the exception of cases on disputes, the jurisdiction of which is established by Article 31 of this Code.

9. Replacement of a judge or one of the judges is possible in the case of:

1) self-recusal or recusal of a judge declared and satisfied in accordance with the procedure established by this Code;

2) prolonged absence of the judge due to illness, vacation, study, being on a business trip.

10. The replacement of a judge is also carried out in cases of termination or suspension of his powers on the grounds established by law.

11. In case of replacement of the judge during the consideration of the case, the trial must be conducted from the very beginning. The commission of procedural actions in urgent cases, including the acceptance of a statement of claim or a statement and the initiation of proceedings, consideration of an application for securing a claim, postponement of court proceedings, by one judge instead of another judge in the order of interchangeability is not a substitute for a judge.

1. As a general rule, civil cases in the courts of first instance are considered by judges alone.

2. Civil cases provided for in part four of Article 27 of the CPC are considered and resolved in the Astana city court solely by a judge according to the rules of the court of first instance.

3. According to the requirements of Article 28 of the CPC, a judge of the Supreme Court alone, according to the rules of the court of first instance, examines civil cases within the competence of the Supreme Court (investment disputes, disputes on the protection of electoral rights).

4. Part four of the commented article establishes an imperative rule on the collegial consideration of civil cases in regional and equivalent courts in the appellate instance in an odd number (at least three judges), chaired by the chairman of the board or one of the judges on his behalf, except in cases provided for in Article 402 of the CPC, which allows the consideration of private complaints. and protests by the judge of the appellate instance alone.

Appeals, protest against decisions made by district and equivalent courts in simplified (written) proceedings, private complaint, protest against rulings of the courts of first instance are considered by a single judge.

5. Consideration of civil cases in the court of cassation instance is carried out in the collegial composition of the court in an odd number (not less than three) judges.

6. Cases on the review of decisions of the court of cassation instance are considered in a collegial composition in an odd number (not less than seven) judges under the chairmanship of the Chairman of the Supreme Court or one of the judges on his behalf.

7. The composition of the court for the consideration of a particular case is formed taking into account the workload and specialization of judges in a manner that excludes the influence on its formation of persons interested in the outcome of the trial, including through the use of an automated information system. Arbitrary replacement of judges is not allowed.

8. Issues of making an additional decision, correcting descriptions or obvious arithmetic errors made in the court decision, clarifying the decision, postponing, installment, changing the method and procedure for executing the court decision are subject to resolution by the same composition of the court that made the decision on the case.

9. 10, 11. The resolution of issues related to the change of judicial structures falls within the competence of the Chairman of the court. However, it should be borne in mind that arbitrary replacement of a judge is not permissible due to the provisions on the immutability of the composition of the court. A judge may be replaced either as a result of satisfying an application for recusal (self-recusal), or on other grounds that objectively exclude the possibility of a judge's participation in the process (prolonged illness, death, termination of judicial powers, vacation).Violations of the rules on the composition of the court are an unconditional basis for the cancellation of a judicial act on appeal and cassation.

Additional comment It is necessary to distinguish the concepts of "judge substitution" from "interchangeability". Cases of replacement of judges in civil proceedings are regulated in parts nine and ten of Article 35 of the CPC. Urgent actions are carried out interchangeably on the basis of the order of the chairman of this court without redistributing the case. Such cases may include the consideration of an application for securing a claim, which is possible only after the acceptance of the statement of claim and the initiation of proceedings, the postponement of the trial by one judge instead of another judge (the impossibility of carrying out this procedural action by the judge in the case under consideration due to illness, etc.).

Subject to the provisions of part seven of Article 35 of the CPC, the case is further distributed if the proceedings are initiated by another judge in the order of interchangeability in order to take urgent action. The case may be transferred to another judge if there are grounds provided for in part seven of the commented article. 

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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