Execution of judicial orders by courts

             In accordance with parts 1, 2 of Article 74 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC), the court considering the case, in case of satisfaction of the petition of the person participating in the case on the need to provide (collect, study) evidence located in another city or district, instructs the relevant court to perform certain procedural actions.

The court considering the case, if the petitions of the persons participating in the case are satisfied on the need to provide (collect, study) evidence located in another state with which the Republic of Kazakhstan has an agreement on the provision of legal assistance in civil matters, sends a court order in accordance with the provisions of this agreement.

The rights and freedoms of man and citizen established by the Constitution of the Republic of Kazakhstan and the norms of international law recognized by the Republic of Kazakhstan are recognized and guaranteed in the Republic of Kazakhstan.

According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan" dated May 30, 2005, an international treaty of the Republic of Kazakhstan should be understood as an international agreement concluded by the Republic of Kazakhstan with a foreign state (foreign States) or with an international organization (international organizations) in writing and regulated by international law, regardless of, such an agreement is contained in one document or in several related documents, and also regardless of its specific name (for example: treaty, convention, pact, agreement, etc.).

In accordance with Article 476 of the CPC, the courts of the Republic of Kazakhstan execute orders from foreign courts on the conduct of certain procedural actions (delivery of notices and other documents, receipt of explanations from the parties, witnesses, on-site examination and inspection, etc.) submitted to them in accordance with the procedure provided for by law or an international treaty of the Republic of Kazakhstan.

Courts of foreign States have issued judicial orders for the implementation of the above-mentioned individual procedural actions in accordance with the following international documents, namely:

- Convention "On Legal Assistance and Legal Relations in Civil, Family and Criminal Matters" (Chisinau, dated October 07, 2002);

- Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, dated January 22, 1993, as amended on March 28, 1997);

- Protocol of negotiations between the Kazakh and German delegations dated January 30, 1996 "On legal assistance in criminal and civil matters";

Agreement on the Procedure for Resolving Disputes related to the Implementation of Economic Activities (Kiev, dated March 20, 1992);

- the agreement concluded between the Republic of Kazakhstan and the Republic of Uzbekistan on legal assistance and legal relations in civil, family and criminal matters (Almaty, dated June 02, 1997).

The provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign States in the field of international legal cooperation is regulated by the Instruction on the Provision of Legal Assistance by Courts of the Republic of Kazakhstan and seeking legal assistance from Courts of Foreign States, approved by the Order of the Head of the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan dated May 11, 2016.

             A court order is a procedural action provided for by the norms of the CPC, through which the court considering the case obliges (instructs) another court in whose territorial jurisdiction the evidence is located to perform certain procedural actions with this evidence.

A court order is a way to obtain evidence located in another locality, which makes it difficult to submit it directly to the court considering the case. The basis for a court order is the court's satisfaction of the petition of the person involved in the case to collect evidence located in another city or district. A court order may be issued both in order to provide evidence (Article 69 of the CPC) and in preparing a case for trial.

The court considering the case instructs another court to perform a certain procedural action to collect evidence: to obtain explanations from the persons involved in the case (part two of Article 202 of the CPC), to interrogate the witness (Article 207 of the CPC), to examine documents (Article 208 of the CPC), to examine physical evidence (part two of Article 210 of the CPC).

        The courts of the Republic of Kazakhstan applied for judicial orders to perform certain procedural actions:

- on handing over to the defendant(s) and third parties a copy of the statement of claim;

- explaining the rights to the defendant(s), to third parties;

- interviewing the respondent(s) and third parties on the questions asked;

- receiving written explanations, etc.;

- interrogation of the witness(s).

In accordance with Article 476 of the CPC, the courts of the Republic of Kazakhstan provide legal assistance to the extent provided for by legislation and (or) international treaties ratified by the Republic of Kazakhstan.

The provision of legal assistance includes the delivery and forwarding of notices, other documents, as well as the performance of other procedural actions, in particular, hearing parties, witnesses, conducting an expert examination, on-site inspection, and other procedural actions, the performance of which is provided for by legislation or an international treaty ratified by the Republic of Kazakhstan, or on the basis of reciprocity, as part of the provision of legal assistance.

According to the posted documents, the courts of the Republic of Kazakhstan have received judicial orders from the following foreign countries:

- Federal Republic of Germany; - The Russian Federation. Courts of foreign States have issued judicial orders for the implementation of the above-mentioned individual procedural actions in accordance with the following international documents, namely:

- Convention "On Legal Assistance and Legal Relations in Civil, Family and Criminal Matters" (Chisinau, dated October 07, 2002);

- Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, dated January 22, 1993, as amended on March 28, 1997);

- Protocol of negotiations between the Kazakh and German delegations dated January 30, 1996 "On legal assistance in criminal and civil matters";

According to sub-paragraphs 1), 3) of Part 2 of Article 476 of the CPC, the courts of the Republic of Kazakhstan execute orders from foreign courts on the conduct of certain procedural actions transferred to them in accordance with the procedure provided for by law or an international treaty ratified by the Republic of Kazakhstan, or on the basis of reciprocity, except for cases when:

execution of the order may damage the sovereignty of the Republic of Kazakhstan or threaten the security of the Republic of Kazakhstan;

execution of the order is not within the jurisdiction of the court;

in other cases stipulated by international treaties of the Republic of Kazakhstan.

The study of the materials shows that the refusals provided for in Article 476 of the CPC RK to satisfy court orders were not issued by the courts, and the reasons for the return of court orders were the impossibility of their execution due to the non-residence of the person at the address indicated in the order. In these cases, the courts took measures to clarify the address at the place of residence through the electronic program of the SIOP and the SB RK.

If the addressee is registered but does not live at the specified address, the bailiff of the court drew up acts on the non-residence of the person at the specified address and the documents received were returned to the Administrator of the courts of the region, indicating the circumstances that prevented its execution with the attachment of documents confirming these circumstances.

The Instruction on the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign States, approved by the Order of the Head of the Department for Ensuring the Activities of Courts at the Supreme Court of the Republic of Kazakhstan dated May 11, 2016, details the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign States in the field of international legal cooperation.

Thus, the provision of legal assistance is formalized in the form of official documents, according to the appendices 1, 2, 3, 4, 5, 6 to the Instructions. Courts provide legal assistance based on specific circumstances, the interests of justice and society as a whole, and in accordance with the legislation of the Republic of Kazakhstan.

When providing legal assistance, the competent authorities of the States parties to an international treaty communicate with each other through the central and its territorial bodies, designated as authorized bodies for direct communication (hereinafter referred to as the central body). The competent authorities for the direct provision of legal assistance are the courts.

In accordance with Decree No. 1093 of the President of the Republic of Kazakhstan dated November 3, 2010, the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan (the Office of the Supreme Court of the Republic of Kazakhstan) (hereinafter referred to as the Department) and its territorial divisions (court administrators) in regions, the capital and cities of republican significance (hereinafter referred to as court administrators) is the central the body responsible for providing legal assistance by courts of the Republic of Kazakhstan and requesting legal assistance from courts of foreign states.

In cases where an international treaty concluded by the Republic of Kazakhstan establishes rules other than those contained in the legislation of the Republic of Kazakhstan, the rules of the international treaty shall apply.

In the absence of an international agreement, cooperation with the competent authorities for the provision of legal assistance is carried out on the basis of the principle of reciprocity provided for in international law.

Orders from courts and other competent institutions of foreign states are executed by the courts of the Republic of Kazakhstan upon receipt through the Department or administrators of courts, unless another procedure for sending documents is provided for in an international agreement.

Orders from courts and other competent authorities of foreign States received directly by the courts are subject to execution with the notification of the Department. An application for recognition and authorization of the execution of judicial acts of foreign states (hereinafter referred to as the application) is considered in accordance with the requirements of legislation, an international treaty and these Instructions.

Judicial acts of foreign courts in accordance with Article 501 of the CPC are submitted for recognition and authorization of execution within three years from the date of their entry into force. A missed deadline for a valid reason is restored by the court in accordance with the procedure provided for in Article 126 of the CPC. The application is considered within 30 calendar days from the date of receipt.

Regulatory legal framework.

- The Constitution of the Republic of Kazakhstan dated August 30, 1995;

- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;

- The Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan" dated May 30, 2005; - Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Chisinau, dated October 07, 2002);

- Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, dated January 22, 1993, as amended on March 28, 1997);

- Protocol of negotiations between the Kazakh and German delegations dated January 30, 1996 "On legal assistance in criminal and civil matters";

- Agreement on the Procedure for Resolving Disputes related to Business Activities (Kiev, dated March 20, 1992);

- the agreement concluded between the Republic of Kazakhstan and the Republic of Uzbekistan on legal assistance and legal relations in civil, family and criminal matters (Almaty, dated June 02, 1997).

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases