Why the judges could not adapt to the new rules in 10 days?

November 8, 2018

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…