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Problems and features of legal proceedings, compliance with procedural deadlines and limitation periods under the conditions of emergency and quarantine
- By the Decree of the President of the Republic of Kazakhstan dated 03.15.2020 in order to protect the life and health of citizens for the period from March 16 to April 15, 2020, a state of emergency was introduced in the country.
- As part of the emergency, a quarantine regime was introduced in some cities of the Republic of Kazakhstan with special conditions for economic and other activities and the life of the population. In particular, restrictions were introduced, or even a ban on the movement of people and vehicles without emergency, the rules of entry / exit from them were changed; temporarily suspended the work of all organizations and enterprises, with the exception of those necessary for the livelihood of the population, etc.
- The measures taken affected all spheres of life, they affected the work of the judiciary..
- So the Supreme Court of the RK adopted a decision on consideration by the courts from 03.16.2020. only cases of an urgent nature or cases and materials related to reduced terms of resolution, with the postponement of the consideration of court cases in the remaining categories for later periods by suspension, cancellation of already scheduled meetings and rescheduling them to later dates, suspension of personal reception of citizens, etc.
- At the same time, no exhaustive explanations were given on the procedure for implementing the restrictions, which means a number of problems and additional difficulties in the practice of legal proceedings and possible adverse consequences for both those whose cases were adjourned and those who only intended to go to court.
- For example, to date, the procedure for the postponement and suspension of court cases has not been regulated. There is no clear understanding of how and for how long such cases are postponed / suspended: on the basis of petitions of the parties or on the initiative of the court? Will the time limit for considering cases in production be extended? Will the deadlines for filing appeals and other complaints be extended unconditionally if the deadlines for submitting them are during quarantine? Are limitation periods that expire during the quarantine period subject to unconditional extension?
- As a result of this uncertainty, those who, at the time quarantine was introduced, had already been involved in the proceedings, had already missed deadlines for submitting feedback, presenting evidence, and submitting applications at the preparation stage, etc..
- The situation is not much different for those who did not have time to file claims before quarantine.
- Due to the fact that the Supreme Court of the Republic of Kazakhstan suspended the reception of citizens and recommended that trials be conducted remotely, all appeals, documents and statements of claim should now be sent online (through the “Judicial Office”, the load on which will increase significantly and will not affect its work) or mail.
- If you chose the second method, you should take into account that due to quarantine the schedule of work of post offices on weekends was changed, their working hours were reduced, the provision of financial services to legal entities was temporarily suspended, the rules for access of visitors to post offices were changed, which will undoubtedly be reflected in on the terms of sending and delivery of postal items. The situation remains difficult with the return to the sender of the forms of mail notifications with notes on the delivery of the letter to the recipient.
- In view of the foregoing, we believe that the procedural legislation regarding postal items requires clarifications, at least temporary, for the duration of the emergency.
- In case of difficulty or inability to send correspondence through Kazpost JSC, you can use the services of other courier delivery companies.
- The main thing, despite all the difficulties, is to comply with the deadlines established by the Civil Procedure Code of the Republic of Kazakhstan (GIC).
- There are some peculiarities in the case of filing lawsuits through the “Trial cabinet”.
- Firstly, an EDS (electronic digital signature) is required, which not everyone managed to get before the work of branches of the Government for Citizens NAOGK was suspended.
- An individual can get it remotely by contacting the e-government portal https://egov.kz/cms/ru/services/pass_onlineecp, spending some time and effort on this.
- But the possibility of obtaining an electronic digital signature online by a legal entity appeared only on April 7 of the current year, until that moment on the corresponding page of the portal it was possible to submit an online application with a subsequent application to the branches of the Government for Citizens Public Corporation (PSC) for confirmation. Of course, you need to understand that this portal is extremely overloaded, so getting a service will take a lot of time.
- In addition, the execution of certain procedural actions and the filing of a claim require payment (state duty, surcharge of state duty due to a review of the MCI, payment of experts and other expenses and fees). In conditions of quarantine and suspension of the provision of financial services by banks, post offices, this is feasible only through online payments, which will require additional time and effort for those who do not have payment cards or funds for them. And if almost all cards provide for the possibility of paying fees, then payments to third parties are more complicated, some of them can be done only through RKO banks.
- Unfortunately, the problems that have arisen by the above are not exhausted..
- The Supreme Court of the Republic of Kazakhstan recommended holding court hearings through the videoconferencing / IMX, messengers, using the TrueConf mobile application. Omit the possibility of telecommunications failures, communication imperfections.
- Significant concern is that all documents in the case will be demonstrated and examined remotely — based on scanned copies submitted through the “Trial Cabinet” or directly submitted by the party during the videoconferencing session in online broadcasting.
- The court’s comparison of such copies with the originals is impossible, which will inevitably raise doubts about the reliability and admissibility of evidence, as well as the correctness and completeness of the establishment of the circumstances of the case, since according to paragraph 5 of Article 68 of the Code of Civil Procedure of the Republic of Kazakhstan, circumstances cannot be considered established if only copies are presented in their confirmation documents when the need for submission of the original follows from the requirements of the law.
- Not everyone was able to provide notarization of such copies, due to the fact that in the cities where the quarantine regime was introduced, the work of notaries was suspended until April 20 of this year.
- Under such circumstances, the “Code of Civil Procedure of the Republic of Kazakhstan” (Clause 3, Article 69) on providing evidence by a notary before initiating proceedings in court is also “not working”. Parties whose jurisdiction over disputes is determined by the cities where quarantine is imposed have been denied.
- In addition, the study of documents submitted by the opponent on the screen of a telephone or VKS monitor will cause certain difficulties and take time.
- It seems reasonable to introduce a requirement for the early provision of such evidence in electronic case files, with the establishment of firm deadlines and measures of liability for non-compliance.
- In this regard, it is necessary to note the need to debug the service for issuing passwords and logins to the parties for familiarization and access to the case file in the “Trial Office”. Often court clerks do not have them or simply ignore even written requests for their extradition. But even if they are submitted, the party cannot count on the fact that all the documents submitted in the case will be placed in the “Trial Office” with reference to the dispute in question. As a rule, in the materials of an electronic case there are only lawsuits, court acts and records of court hearings, but you will hardly be able to receive documents received from your opponent on your own, without contacting the court secretary.
- Another problem is the lack of relevant information on the progress of the proceedings in the Trial Office and the late notification by the courts of the parties to the proceedings of deposits, the cancellation of the scheduled court hearings, the receipt of complaints and documents from the parties. Since the courts operate in a limited mode, it is very difficult to get through there, sometimes it is impossible. These issues also require speedy resolution and control.
- Another problematic aspect is the issuance of writ of execution on court decisions..
- Usually, the writ of execution was issued to the claimant on paper for subsequent submission of the CSI for execution. Due to quarantine, this practice will have to be changed. Yes, clause 5 of Article 241 of the Code of Civil Procedure of the Republic of Kazakhstan stipulates that a writ of execution on the application of a recoverer may be sent by the court to the appropriate justice body by territoriality or to a private bailiff for execution. But does this mechanism “work”? And how? Does the court have the necessary integrated databases and communication channels for this? How can a recoverer track a fact of referral? How soon should the court send the document? Are measures of court liability for untimely referral or loss provided for?
- And these are only problems of the civil process, we did not consider administrative and criminal proceedings.
- It is obvious that in order to avoid confusion and to establish uniformity in the work of the courts, a detailed explanation is required from the Supreme Court on the procedural features and consequences of the actual work of the courts during the state of emergency and quarantine, taking into account industry specifics.
- In the meantime, this work will be ongoing, we advise you to be guided by the rules of the Civil Procedure Code, which regulate the procedure for interaction between the court and the persons participating in the case who have not undergone changes during this period. Consequently, all procedural and other actions should be performed in a timely manner, and better in advance, in full accordance with the time limits and requirements established in the Code of Civil Procedure, making every effort not to miss them.
- Of course, the measures taken by the state to prevent the spread of the pandemic (in the form of an emergency and quarantine regime) relate to force majeure, as they are of an emergency and unforeseen nature.
- In this case, according to the Civil Code, the statute of limitations is suspended because an extraordinary and unavoidable event under the given conditions (force majeure) prevented the filing of the claim. However, we believe that in case of missing the deadline for filing a statement of claim, it will be necessary to prove to the court a causal link between the violation of the deadline and the onset of force majeure.
- Perhaps later the courts, given the emergency situation, will be more lenient when considering appeals to restore the missed deadlines, but it is better to act on the principle: “Hope for God, but don’t take it yourself”.
- It is necessary not only to use all available means and tools (electronic document management, e-mail, etc.), but also to record all your actions, facts and results (be sure to save coupons for electronic communications and receipts, record their registration numbers, do not be lazy to do screenshot / photo of the page or notification of a system failure, etc.) This will help you in proving that you have taken all measures to comply with the requirements of the law.
- Once again, try to do everything in a timely manner. And this applies to both already initiated (including deferred and suspended) cases, and the filing of new lawsuits. You need to understand that at the end of the quarantine, the “load” on the courts will increase many times, while the issue of meeting the deadlines will be urgent, they will either be extremely compressed or exceed reasonable limits (which will play into the hands of debtors for obligations). In such a situation, you may not have time to present your evidence, declare the need to interview witnesses or conduct an examination, so it is better to do this in advance.
- For new claims, the risk of non-acceptance for formal reasons is very significant due to the congestion of vessels. In such situations, we recommend immediately contacting the chairman of the court in writing by sending a letter to the court’s email address or through the “Filing appeals” service in the “Trial Office”. You can also send a written request to the court regarding the timing of an action, but only if the time allows you to wait for an answer without missing the deadline.
- The ban on activities introduced in some cities of the Republic of Kazakhstan can be interpreted, as indicated above, by the circumstance of “force majeure”, but this does not deprive your counterparty of the right to make claims in connection with the failure to fulfill contractual obligations, even if it was forced. The right to judicial protection provided for by the Constitution cannot be limited even by the introduction of a state of emergency.
- In order not to be “guilty without guilt”, special attention should be paid to the issues of notifying contractors and correspondence with them. Opponents ’claims should not be ignored; it would be wiser to provide a reasoned answer to them.
- It is also important to comply with the requirements of contracts on the timing and methods of notification of the impossibility of execution and analyze the statute of limitations for claims. Relevant claims or statements / complaints should be filed well in advance of their expiration, leaving a “margin of time” for themselves in case of rejection of their acceptance for the first time and the need to re-submit.
- It is not known how long the state of emergency and quarantine will last, when all the above difficulties and ambiguities are eliminated, and whether new ones arise. In any case, we are always ready to provide you with qualified legal assistance and protect your interests both in court and outside it..