Kazakhstan
discusses introduction of a new type of judicial procedure with a more active
role of a judge [1], namely, the
draft of Administrative Procedure Code of the Republic of Kazakhstan (APC RK) [1] is being
discussed. This draft law shall regulate the dispute between those, who do not
have authority (individuals and legal entities) with those who have it
(government bodies). Such in essence is public law relationship. In order to clarify
the issue of the application of the APC and the Code of Administrative
Offenses, it is necessary to remember, that the APC will regulate procedural
issues and the Code of Administrative Offenses describes all administrative
offenses and responsibility for its commission.
The meaning of
the new APC draft is to compensate the inequality of parties by creating legal
mechanisms and tools for balanced and adequate regulation of administrative
procedures and public law disputes. This is the difference between the
administrative and civil proceedings. If the civil proceeding puts the parties
in equal position, the administrative proceeding is where the person is opposed
by a public law entity endowed with authority, and accordingly it appears to be
that dispute parties are unequal to each other.
The APC draft
stipulates that government body cannot file a lawsuit against individuals and
legal entities. APC shall regulate the procedures for resolving disputes filed
by individuals and legal entities against those who are vested with legislative
powers in relation to them. In such confrontation, individuals and legal
entities are considered to be weak side.
The APC draft
incorporates new principles into the legislation of Kazakhstan: proportionality,
priority of rights, trust protection, prohibition of bureaucracy abuse etc.
Proactive role
of a judge will be the main feature of the new type of legal proceedings.
Guided by this principle, the court will be required to audit the decision of
the government body, to investigate all circumstances of the case if the
evidences presented by the parties are insufficient. Also, the court will
contribute to the elimination of formal errors made in the lawsuits, to clarify
unclear demands and explain the consequences of filing a claim and express a
preliminary opinion on the case. In addition, the court prescribes the
“presumption of guilt” of the government body, when considering a dispute.
Thus, the burden of proof will rest on the authority which made the legal
decision. The new role of a judge disciplines the behavior of officials and
creates favorable conditions for protecting the rights.
The Principle of
Proactive role of the court includes at least three aspects:
1. the court
may not be limited only to the evidences presented and may examine the
circumstances, which may be deemed necessary to establish within the limits of
evidence;
2. the court
may collect evidences on its own initiative, if available ones are insufficient;
3. in general,
the government body is obliged to prove its innocence, where the parties are
required to provide with documents or any information requested by the court.
All of the
above, will allow to administrative proceedings become a full form of justice,
in a one row with criminal and civil proceedings.
As for the
civil proceeding, there are also opinions about the need for a more active
court and a change in its approach [3]. The presence of such opinions at the moment is
because, civil proceeding legislation determines that the court is exempted from
collecting evidence at its own initiative. The court bases its decision only on
those evidences, which was provided during the course of a proceedings on equal
terms by each party [4]. Therefore,
the following picture turns out: a judge in a civil proceeding is not entitled
to be active, but shall make a fair decision.
The civil court
in each case shall ensure the rights equality of process participants for the
presentation and investigation of evidence and making application. However, the
equality of parties cannot be unconditional. The subjects of civil law
relations have different opportunities to prove their position, in particular,
in disputes with large corporations or government bodies. If in such disputes
the court will take a passive position and the legislation will be unconcerned
to such inequality of the parties, then competitiveness will only become an
imitation, and equality will become a formality.
In order to get
a fair decision in the civil process, the principle of mixed competition is
practiced, where the judge is also included in the management process. Mixed
competitiveness provides for the process organization in such a way that the
parties and other participants of the proceeding could prove their personal
position regardless of the court instance and express their point of view with
the presentation of evidence on the initiative of the court.
Moreover, the court
activity itself should not frustrate the very competitiveness of the parties.
Therefore, the main direction for the legislation development on this issue at
the moment will be the designation of the court activity limits.
The continental
European adversarial proceeding and its model of an active court approach to
the proceeding can be taken as an example. With this approach, the task facing
the court is to actively establish the truth, to assist the parties with the
dispute in the exercise of their procedural rights and obligations. In a
different manner, issues are resolved in Anglo-Saxon law. In this model, the
court has a more passive role, and its main task is to monitor compliance by
the parties with procedural rules. Here, the parties compete with each other in
the timely presentation of evidence and petitions, and jurors determine which
party was the most convincing.
So, the judge may
be guided by the principle of the active role of the court, where the degree of
his activity will be determined as the participant in the proceeding himself
leads the court to this need, such as the presentation of evidence. This will
be the middle way following the example of the continental European system of
law, where the court has an active role in obtaining evidence if necessary, and
has the right to demand evidence on its own initiative. This approach shall
allow the parties of the dispute to protect their rights in a better way in a
legal dispute.
The principles
are the most stable rules of law, where changes may only affect their quantity
and quality. There is no need for permanent change, except one that really can
show its effectiveness. At the moment, there is a need to strengthen the active
position of the court for timely resolution of current problems. The active
role of the court can be applied, if it is a condition for the correct and
productive activity of the entire judicial system in procedural law.
Links:
[1] https://www.zakon.kz/4985175-proekt-administrativnogo-protsedurno.html
[2] https://online.zakon.kz/Document/?doc_id=37362987
[3] https://www.zakon.kz/4901426-aktivnaya-rol-suda-v-grazhdanskom.html
[4] Civil Procedure Code dated 31.10.15, clause
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