of May 14, 1998 No. 1
About some questions of application of the legislation on judicial authority in the Republic of Kazakhstan
For the purpose of uniform application in court practice of the regulations regulating questions of ensuring independence of judges when implementing justice, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of courts to need for activities for implementation of justice to proceed from provision of the Constitution of the Republic of Kazakhstan (further – the Constitution) that judicial authority in the Republic is branch of the government interacting with other branches of the government of the Republic: system of controls and counterbalances, legislative and executive with use.
2. According to the requirement of item 4 of article 4 of the Constitution courts have no right to apply the unpublished regulatory legal acts concerning the rights, freedoms and obligations of citizens and to prove by them the decisions. Therefore during consideration of the case the court shall check the fact of publication of the regulatory legal act which is subject to application.
Courts of the first, appeal and cassation instances in case of fulfillment of requirements of article 78 of the Constitution shall address with submission to the Constitutional Council of the Republic of Kazakhstan (further - the Constitutional Council) about recognition unconstitutional the law or other regulatory legal act infringing the rights and freedoms of man and citizen affirmed by the Constitution at any stage of consideration of the case. At the same time courts shall observe strictly form and content of the appeal to the Constitutional Council, the stipulated in Clause 22 Constitutional laws of the Republic of Kazakhstan of December 29, 1995 No. 2737 "About the Constitutional Council of the Republic of Kazakhstan". Along with removal of submission to the Constitutional Council and suspension with respect thereto of criminal proceeding court according to requirements of Article 342 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) the defendant having the right in case of stay under guards to discuss question of change to it measures of restraint.
3. The judge when implementing justice shall be impartial, strictly adhere to the principle of competitiveness and equality of participants.
The statement the judge in any form of preliminary judgments on the case which is in its production, inadmissibly. The judge expresses the opinion on specific case only in the consultative room.
According to the principle of competitiveness and equality of participants, the court shall provide to the parties in judicial session equal opportunities, and also procedural activity of the parties on upholding of the interests.
4. Courts shall pay special attention to questions of independence of judges, take measures for inadmissibility of intervention in their activities, stop attempts of control of judges or assignment on them of obligations, not inherent in their powers.
Should understand any forms of impact on the judge for the purpose of hindrance as intervention in activities of court implementation of objective and impartial justice by it on specific case. Direct specifying or indirect request from this or that person for decision making for benefit of the specific party of legal procedure, in particular, can be referred to such types of intervention, intentional creation of conditions under which the judge is forced to make certain decision, and other similar actions.
Capture on control of the case which is in production of court, state bodies or their officials justice implementation should regard as intervention in judicial activities for the purpose of hindrance.
6. According to Item 1 of article 1 of the Constitutional law of the Republic of Kazakhstan of December 25, 2000 No. 132-II "About judicial system and the status of judges of the Republic of Kazakhstan" (further – the Constitutional law on judicial system and the status of judges), addresses, statements and claims of citizens and the organizations which are subject to consideration according to the procedure of legal proceedings cannot be considered in essence or taken on control by any other bodies, official and other persons.
Proceeding from it, courts should leave written or oral addresses of officials of state bodies in which recommendations about occasion of permission of this or that case are stated without consideration, in necessary cases besides to put question of accountability of these persons.
Officials of state bodies, according to the requirements of the law stated above, on addresses and petitions from citizens and the organizations for legal cases shall explain to applicants that claims to judgments can be submitted only in superior court and in the procedure established by the law.
7. Taken legal effect sentence, the decision or the court order are obligatory for all as concerning the instructions specified in them, and the established court of circumstances and their legal treatment.
Nobody has the right to distort randomly the judgment, to discredit it and to interfere with execution. Expression of disagreement with the judgment and its appeal (protest) in superior court shall be made in the procedure established by the law.
Explain that in cases of evasion of citizens, officials of state bodies and the organizations from voluntary execution of the court resolution which took legal effect these persons bear the administrative responsibility.
In case of non-execution of the court decree which took legal effect, and equally in hindrance in its execution, citizens, public agents and employees are subject to criminal prosecution under article 430 of the Criminal Code of Kazakhstan (further - UK).
8. Courts should mean that the principle of publicity of legal proceedings consists in possibility to all citizens including who are not participants of process on the considered legal case to be present at his trial. Therefore it is necessary to exclude as the cases of unreasonable refusal contradicting the principle of publicity to representatives of mass media to be present at courtroom.
It must be kept in mind that according to article 25 of the Law of the Republic of Kazakhstan of July 23, 1999 No. 451-I "About mass media", impact of mass media on court attracts the responsibility provided by legal acts of the Republic of Kazakhstan.
In relation to the called provision of the law it is necessary to understand such messages of mass media which are directly or indirectly directed to creation of public opinion about correctness of line item of one of the parties of legal procedure and about legality and justice of the forthcoming court decree only in case of pronouncement of certain decision by court as the decision of results of legal proceedings.
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