Версия для печатиThe article of the judge of the Supreme Court of the Republic of Kazakhstan Denis Shipp
In 2016, Kazakhstan celebrates 25 years of its independence. A quarter of a century is a sufficiently long period, the foreseeable one in historical terms, which allows to draw some conclusions and to adjust plans for further development. During all these years, Kazakhstan has been steadily carrying out political and social reforms to ensure the rule of law, protection and full realization of human rights, sustainable economic development and the growth of the people's welfare. The leadership of the Republic of Kazakhstan in the Central Asian region in movement towards democracy is recognized by official representatives of foreign countries and international organizations.
Last year the head of the state has formulated five institutional reforms, which the state has to implement to ensure its future steady development. These reforms are the Kazakhstan's response to the global and domestic challenges and at the same time the plan of entry to the community of the 30 developed countries in the new historical conditions. The plan of the reforms realization is set out in detail in the program document the Plan of the Nation "100 concrete steps to implement the five institutional reforms."
This year, all state bodies have come to implement this Plan into life. The chairman of the Supreme Court of the Republic of Kazakhstan Kairat Mami has stated that last year for the country's judicial system was marked with the sign of the performance of the tasks defined by the Head of State in the Plan of the Nation "100 Concrete Steps." The Kazakhstan judicial system faces new challenges related to the implementation of the best international standards of justice, in particular in the area of investment and commercial litigation.
Out of the five institutional reforms, special role is given to ensure the rule by law. The practical implementation of this reform is set out in steps 16 through 34, of which the first eleven are aimed at improving the justice procedures and the judicial system itself. These steps provide for the optimization of the judicial system in order to facilitate citizens' access to justice, improved quality of the judicial training, as well as strengthening of the judges’ accountability, mandatory audio/video recording of all court sessions, expansion of the scope of the jury. To ensure the balance between the prosecution and the defense in courts the Plan provides for the gradual transfer to the investigating judge of the powers to authorize all the investigative actions, which limit the constitutional human rights. To facilitate and accelerate the judicial procedures of the trial it is envisaged to reduce the participation of the prosecutor in the civil litigation.
In addition, to improve the investment climate the Plan of the Nation provides for introduction of separate proceedings for investment litigations and setting up in the Supreme Court of the Republic of Kazakhstan of the investment board to deal with litigations, involving big investors. The International Arbitration Centre AIFC is being created in Astana following the example and experience of Dubai.
Another step is envisaged to establish an international council at the Supreme Court of the Republic of Kazakhstan, aimed at the implementation of the best international judicial standards with the participation of reputable foreign judges and lawyers to advise the Supreme Court on the improvement of the Kazakhstan's justice.
It stands to mention that currently all the listed steps have already been implemented by the Kazakhstani judicial system. In 2015 new codes were adopted as follows: the Criminal and Criminal Procedure Codes, the Code of Administrative Offences; from 2016 the following new codes has been applied: the Code of Civil Procedure, the Entrepreneurial Code, the Labour Code; other complex changes have been introduced into the existing legislation.
With the aim of optimization the five-tier judiciary system has been transformed into a three-tier one. The lawsuits on the merits are resolved in regional and equated courts of the first instance, whose decisions before coming into legal force may be revised by regional courts of appeal and equated courts. After the entry of the judicial act into legal force, it can be revised only under cassational procedure in the Supreme Court of the Republic of Kazakhstan. This change makes the judicial system easier and more efficient, stimulates trial participants to be proactive and compete through providing evidence and use of their procedural rights before the court decision comes into force. Reduction of the number of courts, adjudicating disputes, promotes more rapid restoration of violated rights, as well as cuts of legal costs.
To implement the step of creating a separate investment proceeding the new Civil Procedure Code has introduced a special procedure for the judgement of investment cases. Following the Entrepreneurial Code investment cases are those, which arise out of the contractual obligations between investors (inclusive big investors) and government agencies in connection with investment activities of the investor.
According to Parts 4 and 5 of Article 27 of the Code of Civil Procedure of RK the Astana city court following the rules of the trial court considers and decides civil cases on investment disputes, except for the cases under the jurisdiction of the Supreme Court of the Republic of Kazakhstan, as well as other disputes between investors and state agencies related to the investment activity of investors. Such decisions are reviewed by the Specialized Judicial Board of the Supreme Court of the Republic of Kazakhstan, comprised of three-judge panel.
Other disputes, arising from legal relationships with investors, but not related to the investing activity, as well as disputes involving investors subject to a simplified production, relate to the jurisdiction of the district (city) and equivalent courts in accordance with the jurisdiction, stipulated by Chapter 3 of the Code of Civil Procedure of RK.
In addition to the review of the judicial acts in the appeal, the Supreme Court of the Republic of Kazakhstan considers and decides under the rules of the first instance court the civil cases on investment lawsuits, involving a big investor. Judicial acts of the Specialized Judicial Board of the Supreme Court of the Republic of Kazakhstan may be reviewed on cassation by the Supreme Court of the Republic of Kazakhstan.
If the investor's litigation with a public authority is connected with the investment and the investor's activities, arising from the contractual relations with a public authority, its consideration relates to the jurisdiction of the specialized staff of the Astana city court, and for a big investor – to the Specialized Judicial Board of the Supreme Court. This category should include lawsuits, related to the conclusion, modification, termination of the investment contract, return of the state grants, the amounts of taxes and customs duties, from payment of which the investor has been released in accordance with the investment contract terms.
If the litigation, involving the investor, is not connected to the investment activities of the investor or the other party of the litigation is not a public agency, it refers to the consideration of the jurisdiction of the courts of general jurisdiction and economic courts, depending on the status of the other parties of the litigation. These are the cases, arising from the labour relations of the investor with his employees, corporate lawsuits involving investors, cases of non-contractual obligations, including torts, such as damage to a third party by investor's transport or his employees as a result of a traffic accident.
This order of investment cases consideration has been created to demonstrate the readiness of the state to guarantee to the investors an individual approach in resolving their cases. Such cases will not fall into the common flow of all civil cases in Kazakhstan, considered by the courts of general jurisdiction and specialized economic courts - their cases will be considered by a separate staff of the capital court, and big investors’ cases - directly by the Supreme Court. This helps to achieve several goals. First, the civil case of the investor's right protection will not be buried in the overall flow of civil cases. Second, the consideration of such cases by only two courts located in the capital, will have a favorable impact on the formation of a uniform judicial practice in consideration of this kind of cases. In addition, this leads to the reduction of the number of courts, adjudicating the investor's lawsuits to the state, which helps reduce corruption risks, costs and time of litigation. It is obvious, that the court proceedings will be carried out quickly and efficiently.
Thus, the creation of a special procedure for the litigation of investment cases is aimed at protecting the rights and lawful interests of local and foreign investors, as well as the state.
In addition to the establishment of the international arbitration center at the International Financial Center of Astana the court of the financial center is to be created, which will not be part of the judicial system of the Republic of Kazakhstan and will be completely independent. The activity of the court shall be based on the procedural principles and norms of England and Wales and the standards of the world's leading financial centers. These provisions are also designated to improve the investment attractiveness of the established international financial center, to guarantee to investors the maximum protection of their rights and lawful interests in their usual legal environment.
The implementation of "100 concrete steps" will allow our country to acquire a margin of safety, which will strengthen the Kazakhstan's statehood and ensure the rule of law.
