Comments to article 185. Chairman of the court session of the Civil Procedure Code of the Republic of Kazakhstan

1. The duties of the presiding judge are performed by the judge. The chairman directs the course of the meeting, ensuring, in accordance with the principles of civil procedure, that the sequence and order of the procedural actions are observed, that the participants in the process exercise their procedural rights and perform their procedural duties, and that the process has an educational effect.

2. Objections of any of the persons participating in the case against the procedural actions of the presiding judge shall be recorded in the minutes of the court session.

3. The presiding judge shall take the necessary measures to ensure proper order in the court session. The requirements for maintaining order in the court session are mandatory for all persons participating in the case and their representatives, specialists, experts, interpreters, as well as for citizens present in the courtroom. Failure to comply with the requirements of the presiding judge to maintain order in a court session shall entail liability provided for by law in accordance with the requirements of Articles 119 and 120 of this Code.

1. Only a judge considering a particular civil case may act as the chairman of the court session. In the case when the case is considered by the judge alone, the judge is the chairman. When it comes to the collegial consideration of a case, one of the judges from the composition becomes the chairman.

The peculiarity of the legal position of the presiding judge in the courtroom is that he is charged with the proper conduct of civil proceedings. At the same time, he is endowed with powers that allow him to direct the course of the trial. According to the norms of the commented article, the chairman of the court session is obliged to take into account the effect of all legislative requirements, including those providing for the principles of civil proceedings.

2. The tasks of the court session management primarily relate to the external (attributive) features of the judicial process. However, the court must take into account the content of the norms of all legislation relating to the range of rights and obligations of subjects involved in civil proceedings, as well as persons assisting in the administration of justice in civil cases.Compliance with the principles of legality, equality of all before the law and the court, procedural equality of the parties, and the language of legal proceedings is directly related to the implementation of the norm of the commented part of the article. The presiding judge is obliged to respond to the legitimate will of the persons participating in the case. This is not always associated with the adoption of a procedural decision by the judge, however, it is required that all objections of participants in the proceedings against the commission of procedural actions be recorded in the minutes of the court session.

3. By ensuring order in the courtroom, the judge performs a two-pronged function in the process. Firstly, they ensure that the procedure for performing procedural actions is followed, and secondly, through the requirements for order in the courtroom, justice in civil cases is ensured in a substantive aspect.There are no uniform requirements directly stipulating the actions of the presiding judge to ensure order in the courtroom.At the same time, the actions of the chairman will be largely determined by the norms of the commented chapter 18 of the CPC. It is necessary to ensure that the procedural rights of the participants in the process are respected, as well as to ensure that the persons involved in the case fulfill their procedural duties.In general, this will contribute to the implementation of both organizational and functional principles of civil proceedings, the most important of which, among others, are adversarial and procedural equality of the parties.The educational effect of the process will be determined by the proper administration of justice in a civil case. The objective position of the chairman, his suppression of illegal actions of the participants in the process and those present, will have an educational effect on those present.Ultimately, the court will make a legitimate and reasoned decision, issue private rulings against violators of legality, and cover the results of certain court proceedings in the media. This, in turn, is directly related to the implementation of the principle of transparency of judicial proceedings (Article 19 of the CPC).The judge must take the necessary measures to ensure order in the courtroom. We are talking about both compliance with general norms of public order and special requirements. Persons who are in the courtroom must enter it in a timely manner, take their places, and comply with the requirements of Article 187 of the CPC.

Compliance with the norms of part seven of Article 19 of the CPC is of no small importance for ensuring order in the courtroom. There is a direct indication that filming and photography, video recordings, live radio and television broadcasts, and video broadcasts on the Internet should not interfere with the normal course of the court session. As a result, the court is given the right both to prohibit these actions and to limit their commission in time.The requirements regarding the order in the courtroom apply to any persons who are in the courtroom, regardless of whether they participate in the case or are simply present. The requirements are also mandatory for translators, specialists, experts, and witnesses.

The consequences of a violation of order in the courtroom may be the application of measures provided for in Articles 119, 120 of the CPC. These articles regulate the general procedure for the application of liability measures. Depending on the actual nature of the actions committed, the violator will be held accountable in accordance with the norms of the Administrative Code or the Criminal Code. 

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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