Principle of Proactive role of the court during the course of a proceedings

February 19, 2020

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.






[4] Civil Procedure Code dated 31.10.15, clause 15