THE ORDER OF THE HEAD OF DEPARTMENT ON ENSURING ACTIVITY OF THE COURTS UNDER THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN (THE OFFICE OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN)

of May 11, 2016 No. 6001-16-7-6/196

About approval of the Instruction about rendering by courts the Republic of Kazakhstan legal assistance and the request for legal assistance to courts of foreign states

According to part six of Article 476 of the Code of civil procedure of the Republic of Kazakhstan of October 31, 2015 I ORDER:

1. Approve the enclosed Instruction about rendering by courts the Republic of Kazakhstan legal assistance and the request for legal assistance to courts of foreign states.

2. To provide to department of international backgrounds and Protocol of Department of ensuring activity of the courts under the Supreme Court of the Republic of Kazakhstan (the office of the Supreme Court of the Republic of Kazakhstan):

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) within ten calendar days after state registration the direction of this order on official publication in periodic printing editions and in information system of law of Ad_let;

3) within five working days from the date of receipt of the registered this order the direction it in the Republican state company on the right of economic maintaining "The republican center of legal information of the Ministry of Justice of the Republic of Kazakhstan" for inclusion in Reference control bank of regulatory legal acts of the Republic of Kazakhstan;

4) placement of this order on Internet resource of the Supreme Court of the Republic of Kazakhstan.

3. To impose control of execution of this order on the deputy manager of Department on ensuring activity of the courts in case of the Supreme Court of the Republic of Kazakhstan (the office of the Supreme Court of the Republic of Kazakhstan) Fedotov V. D.

4. This order becomes effective after ten calendar days after day of its first official publication.

Approved by the Order of the Head of Department on ensuring activity of the courts under the Supreme Court of the Republic of Kazakhstan (the office of the Supreme Court of the Republic of Kazakhstan) of May 11, 2016 with No. 6001-16-7-6/196

The instruction about rendering by courts the Republic of Kazakhstan legal assistance and the request for legal assistance to courts of foreign states

Chapter 1. General provisions

1. This Instruction about rendering by courts the Republic of Kazakhstan legal assistance and the request for legal assistance to courts of foreign states (further - the Instruction) disaggregates rendering by courts the Republic of Kazakhstan legal assistance and the request for legal assistance to courts of foreign states in the field of the international legal cooperation.

2. The concepts containing in this Instruction have the following value:

1) competent authority - the public institution or court of the Republic of Kazakhstan or foreign state authorized on implementation of the intercourses concerning rendering legal assistance on civil, family and criminal cases, and also cases on administrative offenses according to the international treaty or the national legal system of the relevant state;

2) the international treaty of the Republic of Kazakhstan - the international agreement signed by the Republic of Kazakhstan with foreign state (or the states) or with the international organization in writing and regulated by international law irrespective of, such agreement contains in one document or in several documents connected among themselves, and also irrespective of its specific name;

3) legal assistance - carrying out one state by court according to the order or the petition which arrived from the competent authorities of other state, legal proceedings necessary for legal proceedings of case or recognition and permission of execution of the court ruling;

4) the order - the court document about delivery of documents and production of separate legal proceedings in the territory of other state;

5) the petition - the appeal of physical person or legal entity, or court with request for recognition and permission of execution of the court ruling in the territory of other state.

3. Courts give legal assistance, proceeding from specific circumstances, interests of justice and society in general, and according to the legislation and/or international treaties ratified by the Republic of Kazakhstan.

4. If the international treaty ratified by the Republic of Kazakhstan establishes other rules, than those which contain in the legislation of the Republic of Kazakhstan are applied rules of the international treaty.

In the absence of the international treaty of the Republic of Kazakhstan the legal assistance can be given based on request of competent authority of foreign state or is requested by court of the Republic of Kazakhstan according to the legislation of the Republic of Kazakhstan on the principle of reciprocity.

5. Courts of the Republic of Kazakhstan interact with courts and other organizations of foreign states concerning rendering legal assistance on civil, family and criminal cases, and also cases on administrative offenses through the central and territorial authorities authorized on implementation of the intercourses according to the international treaty or the legislation of the Republic of Kazakhstan.

6. Direct interaction of courts of the Republic of Kazakhstan with courts and other organizations of foreign states is allowed only in the cases provided by the international treaty ratified by the Republic of Kazakhstan.

7. Orders of courts and other organizations of foreign states are performed by courts of the Republic of Kazakhstan when obtaining them through Judicial administration of the Republic of Kazakhstan (further - Judicial administration) or its territorial subdivisions in areas, the capital and the cities of republican value (further - Departments) if other procedure for transfer of documents is not provided in the international treaty ratified by the Republic of Kazakhstan.

The orders of courts, other organizations of foreign states which arrived in courts in defiance of procedure for the intercourses are not subject to execution and return to the initiator through the central or territorial authority authorized on implementation of the intercourses according to the international treaty or the legislation of the Republic of Kazakhstan.

8. In pursuance of Item 2 of the order of the Government of the Republic of Kazakhstan of December 31, 2004 No. 1453 "About measures for implementation of the Convention on legal assistance and legal relations for civil, family and criminal cases of January 22, 1993 and the Convention on legal assistance and legal relations on civil, family and criminal cases of October 7, 2002" on accomplishment of provisions of the specified conventions on orders of courts of the Republic of Kazakhstan, courts of foreign states, petitions for recognition and execution of decisions of the courts on civil and family cases, authorizes Departments.

In case of implementation of these conventions Departments send orders, petitions, documents constituted in connection with execution of orders and also court resolutions about satisfaction of petitions directly to competent authorities of the State Parties of conventions, and unexecuted orders of courts and other organizations of foreign states and court resolutions about refusal in satisfaction or return of the petition - through Judicial administration.

The term of consideration by Departments of orders, petitions, and also the documents constituted in connection with execution of orders, or the court resolutions which are taken out by results of consideration of petitions shall not exceed 10 working days from receipt date of their originals.

Chapter 2. Rendering legal assistance by courts of the Republic of Kazakhstan

9. The orders of courts, other organizations of foreign states which arrived in Judicial administration in the absence of the reasons interfering their execution go on territoriality to Departments for the organization of their execution, with the notification of competent authority of foreign state.

10. Execution of orders of courts and other organizations of foreign states includes delivery and transfer of notices, other documents, and also accomplishment of other legal proceedings, in particular, hearing of the parties, witnesses, conducting examination, survey on site, other legal proceedings which accomplishment within rendering legal assistance is stipulated by the legislation or the international treaty ratified by the Republic of Kazakhstan or on the basis of reciprocity. Orders are performed during judicial session and recorded.

11. Orders of courts and other organizations of foreign states are performed by courts of the Republic of Kazakhstan in a month from the date of their receipt according to the procedure, established by the legislation of the Republic of Kazakhstan if other is not provided by the international treaty ratified by the Republic of Kazakhstan.

12. In cases when the documents which are subject to delivery are constituted in foreign language or are not followed by transfer into the state and/or Russian languages, they are handed to the receiver if he agrees voluntarily them to accept.

Delivery of documents makes sure the confirmation containing date of delivery, the signature of person who is handed the document, sealed official vessels and the signature of the judge. In case of refusal the receiver to accept documents, the contractor of the order draws up the statement of refusal with indication of motives of refusal of obtaining which is signed by the last and is certified by official stamp of court.

13. If the order cannot be performed by court to which it is sent in view of incompetence, then the court within 5 working days sends the order on territoriality to other court what within 5 working days the competent authority of the Republic of Kazakhstan shall be informed on.

14. If person who needs to hand court documents or concerning which it is necessary to make legal proceedings does not live (is not located at) specified in documents, then the court performing the order takes measures for establishment of its residence (location) by the direction of the corresponding request in registration authorities of physical persons or legal entities and/or other authorized bodies and the organizations.

In case of lack of data on the new residence (location) of the specified person or in the presence of other objective circumstances interfering execution of the order, the court draws up in any form the statement of order impossibility of performance which is sealed by the signature of the judge and official vessels, and fills confirmation with indication of the reason of non-execution of the order.

15. Performed by orders of courts, other organizations of foreign states refuses fully or partially on the bases provided by the international treaty ratified by the Republic of Kazakhstan.

In the absence of the international treaty of the Republic of Kazakhstan performed by orders of courts, other organizations of foreign states it shall be refused the cases provided by part two of Article 476 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK), part two of Article 569 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) and part four of article 882 of the Code of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code).

In case of refusal performed by the order or impossibility of its execution the court through Department and Judicial administration returns the order and documents attached to it in competent authority of foreign state.

16. In case of execution of orders by court the relevant documents (the record of interrogation, confirmation about delivery of documents, the certificate of expenses and other documents) are fastened with the signature of the judge, make sure official stamp of court and go to Department.

The department checks correctness of document creation, the orders constituted in connection with execution, according to requirements of the procedural legislation, the international treaty of the Republic of Kazakhstan and this Instruction and sends documents to competent authority of the Republic of Kazakhstan or foreign state or returns documents for elimination of the revealed violations or shortcomings.

17. The petition is considered according to the procedure, established by the legislation of the Republic of Kazakhstan if other is not provided by the international treaty ratified by the Republic of Kazakhstan.

The petition moves the party in whose advantage the court resolution or its representative by proxy is taken out.

Court resolutions of foreign vessels according to Article of 501 GPK are shown to recognition and permission of execution within three years from the moment of their introduction in legal force. The term passed on reasonable excuse is recovered by court according to the procedure, stipulated in Article 126 GPK.

18. The petition is considered by court in time, established by the procedural legislation of the Republic of Kazakhstan.

The court by consideration of the petition does not understand questions of justification of court resolution, and shall be limited only to establishment of the fact that conditions, stipulated by the legislation and the international treaty of the Republic of Kazakhstan, are observed.

19. Recognition and permission of execution in the territory of the Republic of Kazakhstan of court resolution of foreign court it can be refused on the bases provided by the international treaty ratified by the Republic of Kazakhstan.

In the absence of the international treaty of the Republic of Kazakhstan in recognition and permission of execution in the territory of the Republic of Kazakhstan of court resolution of foreign court it shall be refused cases, stipulated in Article 504 GPK and part seven of article 608 Code of Criminal Procedure.

20. After the introduction the court resolution about satisfaction of the petition or its verified copy goes Department for further transfer to legal force to competent authority of the Republic of Kazakhstan or foreign state.

In case of refusal in satisfaction or return of the petition the corresponding court resolution or its verified copy through Department goes to Judicial administration which sends it to competent authority of foreign state or returns documents for elimination of the revealed violations or shortcomings.

Chapter 3. The request for legal assistance to courts of foreign states

21. The order shall be signed by the judge in whose production there is case, or the chairman of justices and is certified by official stamp of court.

Form and content of the order are determined by the international treaty of the Republic of Kazakhstan based on which the order is constituted.

In case of lack of the international treaty of the Republic of Kazakhstan courts in case of creation of the order are guided by articles 560, of 565 Codes of Criminal Procedure, part three of the article 881 Administrative Code and this Instruction.

22. In the order shall be specified:

1) name of required organization of foreign state;

2) the name of court from which the order proceeds;

3) the name and file number on which the legal assistance, with indication of the claimant and the defendant is requested;

4) data on physical person: surname, name, middle name (in the presence), birth date and birth place, residence, nationality; about the legal entity: name, legal address or location, bank details and fiscal codes;

5) in the presence of representatives of persons stated above, their surnames, names, middle names (in the presence) and addresses;

6) contents of the order, and also other data necessary for its execution.

In the order about delivery of the document the exact address of the receiver and the name of the handed document shall be also specified.

23. Properly processed following documents certified by the signature of the judge and official stamp of court are attached to the order about delivery of documents:

1) notice on day and place of jurisdiction;

2) copies of the action for declaration;

3) other documents (copies of acts of civil status, address references, etc.).

24. If other is not provided by the international treaty ratified by the Republic of Kazakhstan, the order and documents (the copy of the action for declaration, judicial notices, court resolutions of courts of the Republic of Kazakhstan, etc.) attached to it are drawn up in the state and/or Russian languages with appendix to them of certified translation on official language of the required state.

25. Orders to courts and other organizations of foreign states shall be sent to competent authority of the Republic of Kazakhstan not later than 6 months about day of consideration of the case.

26. If other is not provided by the international treaty ratified by the Republic of Kazakhstan, the order addressed in court or other organization of foreign state goes to Department.

The department following the results of check of execution of the order on compliance to requirements of the legislation, international treaty of the Republic of Kazakhstan and this Instruction sends it to competent authority of the Republic of Kazakhstan or foreign state or returns documents for elimination of the revealed violations or shortcomings.

27. The petition moves the party in whose advantage the court resolution, in competent court of foreign state in the territory of which the court resolution is subject to execution is taken out. It can be filed also a lawsuit which took out court resolution in the first instance. If other is not provided by the international treaty ratified by the Republic of Kazakhstan, this court sends the petition to Department.

The department following the results of check of execution of the petition on compliance to requirements of the legislation, international treaty of the Republic of Kazakhstan and this Instruction sends it to competent authority of the Republic of Kazakhstan or foreign state or returns documents for elimination of the revealed violations or shortcomings.

28. Court resolutions of courts of the Republic of Kazakhstan are shown to recognition and permission of execution in the territory of foreign state till the lapse of time of execution, stipulated by the legislation the required party. The term passed on reasonable excuse is subject to recovery according to the procedure, stipulated by the legislation the required party.

29. Form and content of the petition are determined by the international treaty of the Republic of Kazakhstan based on which the petition is constituted.

30. The Trial Court applies to the petition of the claimant:

1) court resolution or its verified copy, and also the official document that the court resolution took legal effect and is subject to execution or that it is subject to execution to the introduction in legal force if it does not follow from the most court resolution;

2) the document from which follows that the party against which the court resolution was taken out not taken part in process, was as appropriate and it is timely subpoenaed and in case of her procedural incapacity it was properly provided;

3) the document confirming partial execution of the court ruling at the time of its transfer;

4) the document confirming the agreement of the parties for contractual cognizance;

5) other documents provided by the international treaty of the Republic of Kazakhstan.

31. If other is not provided by the international treaty ratified by the Republic of Kazakhstan, the petition and documents attached to it are constituted in the state and/or Russian languages with appendix to them of certified translation on official language of the required state.

32. Recognition and permission of execution of writs in the territory of foreign states are not included into amount of given legal assistance except as specified when at the time of pronouncement of writs of the party lived in the territory of the Republic of Kazakhstan.

According to Item 2) of part of 1 Article 138 GPK if the residence or the location of the debtor is outside the Republic of Kazakhstan, the judge returns the application for pronouncement of the writ with explanation to the applicant of need of appeal to the court according to the procedure of claim production.

33. If the unpaid state fee, the court considering the merits of the case is subject to collection addresses with the petition for the recognition and permission of execution in the territory of foreign state of court resolution regarding collection of the state fee according to the procedure provided by this Instruction.

 

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