In July 2018, the lawyers of Linkage
& Mind analyzed Regulatory Decree №3 of the Supreme Court of Kazakhstan as
of March 16, 2018 (hereinafter – the «Regulatory Decree») on the amendment of the
regulatory decree №5 as of July 11, 2003 “On court decision”.
Along with the certain portion of
criticism we mentioned that the Supreme Court conducts measures on improvement
of court system of the country and hoped the provisions of the Regulatory
Decree will be applied for the impartial administration of justice.
However, legislation of Kazakhstan
is amended so frequently and significantly that the Supreme Court needed only
10 days to amend its own Regulatory Decree which came in force in the first day
of fall. Thus, already on September 10, 2018, some novels of the Regulatory
Decree were cancelled.
In particular, in March 2018 the
highest court of Kazakhstan fixed requirements to the structure and form of the
court decision, including mandatory separation of the act by special headlines
of introductory, narrative, declarative and operative parts; prohibition of
complete copying of claim or objection in the narrative; prohibition on
quotation of legal norms not related to the dispute etc.
Besides, the Supreme Court initially
issued the sample form of court decision which was annex to the Regulatory
Decree. It was prescribed to all judges in Kazakhstan to be guided by this
sample form while drafting decisions.
It was expected that decisions would
become to correspond to their status of important document, at least, by form
and that the new rules would facilitate unification of format of decisions issued
in different regions of Kazakhstan.
However, the new Regulatory Decree №14
of the Supreme Court as of September 10, 2018 dispelled our hopes on
continuation of issue of clear, uniform and well-structured decisions of first
instance courts. The amendments aforesaid, which came into force on September
1, 2018, have been abolished.
As of today, the judges have a right
to issue decisions again in any form ‘which is not contradictory to the law’.
It is unknown authentically, what
caused the Supreme Court to refuse from such necessary, in our opinion,
amendments. Many practicing lawyers considered initiatives of March as brewing
and essential for the development of justice system in Kazakhstan. Probably, it
was not to judges’ liking to change well-established and apparently convenient
for them norms of drafting decisions.
We believe that realities of local
justice could not change drastically in few month and, consequently, could not
objectively be a reason of the last amendments. It is assumed that sample form
of decision, introduced earlier by the Regulatory Decree, should not cause
significant inconvenience for judges and their secretaries. In opposite, the
lawyers of Linkage & Mind has an opportunity to notice that the court
decisions in the new form became aesthetic and easy-to-use in reading.
Due to that, a conclusion suggests
itself: at least, one of the Regulatory Decrees aforesaid was adopted hastily,
without consideration of specifics of drafting decisions by the first instance
courts and without opinion of judges about the process of drafting such
decisions.
Since regulatory decrees of the
Supreme Court directly form the legislation of Kazakhstan, the amendments of
September 10, 2018 repeatedly prove that the system of lawmaking in our country
needs qualitative improvements. Law systems of developed states demonstrate
that it is preferable to adopt deliberate normative acts infrequently rather
that constantly amend legislation and, thus, cause inconvenience for the
persons effected by such amendments.
We hope that the Supreme Court of
Kazakhstan will reconsider again its approach to the process of drafting
decisions of first instance courts and will restore its requirements which had
been in force 10 days only…