Innovations to Kazakh laws on the court decision

August 8, 2018

On March 16, 2018 the Supreme Court of Kazakhstan issued the regulatory decree №3 (hereinafter – the «Regulatory Decree») on the amendment of the regulatory decree №5 as of July 11, 2003 “On court decision”. 

We assume the Regulatory Decree aimed at the unification of format of court decisions issued in different regions of Kazakhstan and at the optimization of their quality.

At present, the parties of court disputes and the lawyers involved regularly have queries regarding logical reasoning of decisions, completeness of indication of all arguments provided by the parties in the decision, other matters. Rather frequently, the appeals criticize court decisions for inaccuracy, ambiguity, superfluous out of proportion of narrative by copying the claim and objections. In general, the vast majority of practitioners, including the lawyers of Linkage&Mind, consider that the decisions of Kazakh courts need qualitative improvements. Court decision is the final point of the dispute on which the parties, their legal consultants, experts, specialists and other persons direct their efforts during many month. Due to that, development of additional requirements to the form and content of court decision by the Supreme Court was considered absolutely essential for the legal system of the state.

It seems reasonable to review some of the amendments to be effective since September 2018.

First, the Regulatory Decree fixes the requirement for the structure and the form of decision. Now, it is required to specify introductory, narrative, declarative and operative part of the decision by appropriate captions. The Supreme Court determined the standards of font, intervals, indents and other similar requisites of text document. Soon, complete copying of claim or objection in the narrative will not be admitted. Likewise, starting from September of this year, it is forbidden to quote legal norms which are not related to the dispute while today such practice is commonly used by the courts.

Since the requirements aforesaid are specified in details, it is expected that court decisions will become to correspond to their status of important document, at least, by form. This innovation, in our view, should facilitate avoiding of decisions of some district courts which, at the first view, look like a untidy rough draft of a student.

Second, in accordance the Regulatory Decree, after proclaiming of decision the judge shall verbally clarify essence, grounds and legal consequences of the decision made.

We believe this requirement was about to happen long time ago. Nowadays, after proclaiming of operative part only, the parties wonder about the grounds of decision and impatiently wait its issue in final version. Today, the parties can decide about the reasonableness of appeal only after reading formal decision as the grounds of the judge remain unknown until the insight. Besides, there is a practice, especially on complex cases, of parties’ applications for clarification of the decision when its legal consequences are unclear.

The norms of the Regulatory Decree give us a hope that henceforth the parties will be informed about the grounds and legal consequences of decision immediately after its proclaiming. Such practice in certain manner shall decrease bureaucratic load of courts for the preparation of additional explanations of their decisions. In addition, it will facilitate prompt and reliable reaction of the parties regarding the appeal. 

Third, in narrative the judge shall mention the objections of defendant and explanations of other persons participated. It is not admitted anymore to indicate one-sidedly the arguments and proofs of the party won only. The judge shall specify on which grounds he does not accept the arguments of another side (lost) and why legal norms provided by this party cannot be applied.

We see these innovations especially important since at present court decisions commonly mention only those rules of law which, in the opinion of judge, shall be applied. In such cases, the party lost reasonably wonder about non-acceptance of its arguments provided. In the nearest future, the judges will be obliged to justify the reasons of rejection and to list the proofs provided by the parties even if such proofs did not ground the judgment finally.

The team of Linkage&Mind consider this approach fair and corresponding to the adversarial nature of the judicial process. We assume the new requirements aforesaid have also certain anti-corruptive function: it is more difficult to reject legal arguments in case such rejection shall be formalized rather than to indicate the arguments of one party who wins.

Fifth, the Supreme Court issued the sample form of court decision which is annex to the Regulatory Decree. Obviously, this form shall simplify the adaptation of lower courts to the new requirements. Besides, it shall decrease the probability of different interpretation of the Regulatory Decree and, as a result, shall facilitate efficient introduction of novelties to the activity of courts.

The aforesaid demonstrates that the Supreme Court of Kazakhstan takes certain measures on the improvement of quality of the national judicial system. We hope these innovations will be really used for the impartial administration of justice.

At the same time, we are confident that citizens and business entities of Kazakhstan could form more positive image about the national legal system in case the Regulatory Decree had been introduced earlier, at the first stages of formation of this system.

It is to be recognized also that current decisions of Kazakh courts are far from their analogues of the developed countries where decisions are resemble dissertations with complex structure, clear logic in declaration, florid linguistic turns and extremely neat form.

Civil procedural code of Kazakhstan prescribes the judge to be led by his moral certainty while making a decision. Due to that, we find also reasonable to specify the train of thought of the judge and some part of his moral certainty in the decision. This approach seems to be more efficient rather than bare listing of facts and legal norms related. Such practice can assist Kazakh judges to come to the new qualitative level and enable any interested person to evaluate the professionalism and impartiality of the judge.

Based on the aforesaid, we want to believe the initiatives of the Supreme Court will be continued and will lead to the improvement of quality of decisions issued by Kazakh courts for the positive effect on the development of society and national law.