A Chance to Appeal: Appellate & Supervisory Proceedings
“Your life is easy until you start contacting the authorities in search of the truth.” An old person’s saying about how difficult it is to find the truth from authorities responsible for deciding your fate. However, you can do it if you know your rights well. Kazakhstani law gives any party to a civil or criminal case the chance to appeal the court’s judgment.
Who may appeal a judgment?
Any civil or criminal case is considered in a court referred to as a “court of first instance.” After the case is considered, the court will pass a “judgment” or “ruling” in a civil case, or a “sentence” or “resolution” in a criminal case. Depending on whether it is a civil or criminal case, you may act as a plaintiff, defendant, accused, victim, or advocate; you may even act as a defense lawyer or a prosecutor. In any event, you have the right to appeal the court’s decision if you are not pleased with the outcome of the case or with a specific aspect of it.
N.B. There are two types of courts which consider appeals: appellate and supervisory courts. The main difference is that appellate courts are used when the judgment has not yet come into force, and supervisory courts are used after the judgment has come into force.
What is meant by “appellate proceedings?”
If you are not pleased with the judgment passed in a court of first instance, you may appeal it. This is done in the court considering the case.
If it is a civil suit, the appeal must be made within 15 days of the final judgment;
If you are not pleased with the sentence on a criminal case, then the documents must be submitted within 10 days of the sentence being made, or upon the convicted individual being placed into custody.
All parties to the trial have the right to familiarize themselves with appeals, and by protests made by the prosecutor, and object to them.
N.B. You have the right to withdraw your appeal and offer new arguments.
How are cases considered in appellate courts?
All parties to a trial shall be informed about the day of the trial in the appellate court. As you were the one who brought the appeal, you have the right to:
Participate in the consideration of the case
Give explanations at the trial
Substantiate your arguments
Object to arguments offered by the opposite party
Provide new materials or information that has not been considered in the court of first instance
File petitions for the provision of such information in court.
After consideration of the case, judges will make one of the following rulings:
Leave the earlier judgment unchanged;
Reverse it, and thereby dismiss the case; or
Move the case for new trial.
What is meant by “supervisory proceedings?”
Even if the judgment has entered force, you as a party to the trial have the right to appeal, and prosecutors have the right to protest, in which case a supervisory proceeding is taken.
Has the decision of the court come into legal force?
Cases are preliminarily considered in supervisory proceedings. The case will be taken to court if a panel of three judges concludes that it is necessary to start a supervisory proceeding to review the appealed judgment. If the judges do not see a basis for that, or if the appeal does not meet the basic legal requirements, they will return it to the individual who filed the appeal.
There are three types of bodies which consider appeals and prosecutorial protests:
Supervisory boards of regional courts and of courts of equal status;
Supervisory board of Kazakhstan’s Supreme Court; and
Plenary Session of Kazakhstan’s Supreme Court.
What kinds of cases are appealed to a supervisory board of a regional court?
At a supervisory board of a regional court and of a court of equal status, you may appeal, and prosecutors may protest, judgments passed in appellate courts. It is also possible to appeal those judgments rendered in a court of first instance that have not been considered in an appellate court.
What kinds of cases are considered by the supervisory board of Kazakhstan’s Supreme Court?
The supervisory board of the Supreme Court considers judgments on civil and criminal cases in response to complaints and protests made by Kazakhstan’s Attorney General. There are some exceptions though. The supervisory board of the Supreme Court does not consider:
Civil cases: Rulings or resolutions on property interests of individuals if the amount in controversy is less than five thousand times a monthly estimate;
Civil cases over property interests of corporations if the amount in controversy is less than twenty thousand times a monthly estimate; and
Criminal cases over minor crimes on which sentences have been passed.
The Plenary Session of the Supreme Court considers judgments in exceptional cases when it is known that the previous court judgment may have a severe and irreversible impact on the life or health of an individual or individuals, or of the national economy and security.
After considering the case, the supervisory court will make a decision similar to those made in the appellate court.
A Defendant in Court
Things that may happen to anyone: Your doorbell rings in the morning. Instead of people wanting to see you, you see a man serving you a summons. The summons informs you that you are now a defendant and have to appear in court at a certain time. Don’t panic. You have a chance to defend yourself and protect your rights.
If a summons has been served to you, it means somebody believes that you have violated their rights or interests. This individual or corporation filed a claim in court, and the court accepted the claim. From now on the person that filed the claim is a plaintiff, and you are a defendant. Suits that are filed in response to a claim for the protection of violated rights and interests are considered as civil suits.
What rights does the defendant have?
First of all, you need to get all the information on what rights of the plaintiff in his/her opinion you have violated, what the plaintiff wants from you, and what he/she claims to. That is why you as a defendant have the right to get a copy of the claim from the court to answer all these questions.
You may raise objections by claiming an illegal nature of the litigation and its continuation, or by stating why you think you are innocent. If the objections are accepted, the court may dismiss the case.
The judge may call you in prior to the trial. This is done to make clear any possible objections ahead of time. If the case is complex, the judge may give you the opportunity to provide a written explanation on the case, with your rights and obligations advised to you.
N.B. You as a defendant have the right to file a counterclaim.
What does the “counterclaim” mean?
The counterclaim means a claim filed by the defendant independently demanding to protect his/her rights or interests. You may exercise this right as a defendant during the entire period of the trial before the court issues its final ruling. The counterclaim is filed following general rules of filing claims.
The judge will accept the counterclaim if the following rules are followed:
The counterclaim, filed by the defendant, should not exceed the limits of the claim filed by the plaintiff; and
There is a mutual link between the counterclaim and the initial claim, and their joint consideration will accelerate the trial and will make it right.
What do you do if you – the defendant - agree to the claims raised by the plaintiff?
If you agree to a claim raised by the plaintiff you can accept the claim under law. The claim may be accepted by issuing a written statement to the court. You as a defendant also have the right to enter into amicable agreement. Decisions about accepting the claim by the defendant and about approving the amicable agreement will be made by the court. If the court says ‘yes’ the case will be dismissed. If the court says ‘no’ the court will continue considering the case, giving its reason(s) for the decision.
How should the defendant behave at trial?
You as a defendant have the right to:
Familiarize yourself with the case material, make extracts from it, and make copies of it;
Challenge the judge and the experts;
Offer evidence and take part in examining it;
Ask questions to other parties involved in litigation, to witnesses, experts and specialists;
File petitions, including those for extra evidence;
Give oral and written explanations in court;
Offer your arguments over matters taken up at the trial;
Object to petitions filed and arguments offered by other parties to the litigation;
Take part in pleading, familiarize yourself with the minutes of the court and make written comments on them; and
Appeal judgments and rulings.
What obligations does the defendant have?
The defendant has certain obligations. You should:
Fairly take all your remedies;
Follow the established procedure for litigation;
Follow all statutory procedures for litigation;
Prove things you are referring to at the trial as grounds for your claims and objections;
Execute judgments; and
Respect the court.
Civil Suits on Criminal Cases
A person that caused you or your relatives moral or physical damage, or damage to your or your relatives’ property, has been charged. He/she will not only be brought to criminal account; he/she will also be held liable to you for the damage they caused, and you will have the right to file a suit. Such a suit in a criminal case is referred to as the “civil suit,” and the person that filed the suit is referred to as the “civil plaintiff.”
Who is authorized to file a civil suit in a criminal case?
A person may file a suit and become a plaintiff if they have suffered moral or physical damage, or if their property was damaged.
Moral damage means moral or physical sufferings of the victim, feelings of humiliation, depression, shame, or other humiliating feelings he/she has.
Physical damage will be determined through forensic examination. It includes light deliberate injury to health, deliberate or accidental severe injury to health or medium damage, as well as the death of the victim.
Damage to property means damage or loss of property. The property may include a house, clothes, domestic property, cattle, structures, plants – everything needed by a person and his/her family.
The following also may be reimbursed as damage:
The cost of burying or treating the victim;
Amounts paid to the victim as an indemnity;
Benefits or pensions;
Expenses for your involvement in the investigation and at trial; and
Fee paid by the victim to his/her lawyer.
The suit will be filed against the accused or persons materially liable for his/her acts and will be considered together with the criminal case.
N.B. Since the damage was caused by the crime itself, the civil plaintiff will not have to pay the respective duty when filing the civil suit.
When may you file the suit?
If you are damaged by the crime you will be entitled to file a civil suit at any time after the criminal suit is filed, but prior to the trial.
The civil suit will be filed in writing. It is essential to indicate in the suit:
On what criminal case the suit is being filed;
Who is filing the suit;
Against whom the suit is being filed;
On what grounds the civil suit is being filed;
What amount is being sought by the suit;
The specific request to collect a specific amount of money or property claimed to undo the damage.
If you decide to state grounds for the suit or the size of the claim, you will have the right to bring another civil suit.
N.B. If you did not bring a civil suit in a criminal case, or if your suit was dismissed, you are entitled to file it as part of the civil proceeding at law.
What rights does the civil plaintiff have?
You as a civil plaintiff have the following rights under the law:
The right to offer evidence;
The right to testify;
The right to petition for the interrogation of witnesses and examinations;
The right to familiarize yourself with the reports of investigatory records and to extract information on the suit from the case; and
The right to get copies of procedural documents.
When considering the case in court you as a civil plaintiff will be involved independently in examining evidence and researching respective matters.
N.B. If you as a civil plaintiff do not agree with the court’s judgment of the suit, you are entitled to appeal the respective parts of it.
What obligations does the civil plaintiff have?
The law obliges the civil plaintiff to appear in court, to inform the court about the circumstances of the case he/she is aware of, and follow the necessary procedures.
General Organization of the Judicial System of the
Republic of Kazakhstan
Court of first instance, appeal and review proceedings, parties to a trial – all of these terms seem very complex to an uninformed person. But it is extremely important to understand the organization of the judicial system since it enables us to know and protect our rights.
What is the role of the judicial system?
Kazakhstan’s judicial system protects the rights, liberties, and interests of individuals and corporations, and ensures that the Constitution, laws, regulations, and international treaties are respected. Judicial authority is implemented on behalf of the Republic of Kazakhstan.
N.B. When rendering justice, the judiciary may only apply those laws and regulations that do not conflict with the Constitution.
To render justice independently, the Constitution provides for the security and the lifelong term of judges in office, and for the financing of courts directly from the national budget.
Who appoints judges?
All judges, except for those on Kazakhstan’s Supreme Court, are appointed by the President. Judges of the Supreme Court are elected by members of Senate, after being recommended by the President.
N.B. Judges may not be elected to the Parliament, be involved in business, or do any other job on a paid basis. However, judges can do research or work as a teacher.
How is the judiciary organized?
Kazakhstan’s judicial system can be compared to a pyramid, with each part organized according to the law.
What kinds of cases are different courts authorized to consider?
Courts of the main tier and of the middle tier are called the local courts or courts of general jurisdiction. Each is entitled to only consider those cases that fall under their jurisdiction according to the law.
N.B. Jurisdiction means a set of merits of the case, based on which it may fall within the responsibility of one court or another.
What does “court instance” mean?
Based on their terms of reference, courts are also referred to as instances: first instance, appeals instance, and review instance.
District courts and courts of equal status represent first instances. They consider civil and criminal cases and materials falling within their jurisdiction.
Courts of equal status as district courts:
Garrison courts consider criminal cases over military crimes and civil cases over military service.
Specialized interdistrict economic courts solve disputes between corporations and individuals doing business without setting up a corporation.
Administrative courts consider different types of cases that by nature are not considered offences but represent a failure to meet the requirements set under rules, instructions, regulations, and laws.
Regional courts and courts of equal status, particularly military courts of the army, act as first instance, appeals instance, and review instances. As a court of first instance they consider:
Criminal cases for crimes which are eligible for the death penalty;
Civil cases falling within special jurisdiction.
As courts of appeals, boards of civil and criminal cases under such courts consider cases:
Over complaints made by parties and persons involved in cases;
In response to attorney’s protests they check the legitimacy and reasonableness of judgments, rulings, sentences, and resolutions, passed in courts of first appearance, and not enforced.
The regional court and the military court of the army consider cases at the supervisory instance.
The Supreme Court of the Republic of Kazakhstan acts as a first instance, appeals instance, and review instance for civil cases. As a first instance for civil cases the Supreme Court has a special jurisdiction:
Cases over challenged laws and regulations passed by the Kazakhstani government;
Cases, decisions, and action or inaction by the Central Election Commission and the Central Referendum Commission.
For criminal cases, the Supreme Court only acts as an appeals instance and review instance. As an appeals instance, the Supreme Court considers civil and criminal cases in response to appeals and protests of sentences and judgments passed by regional courts and courts of equal status but not yet executed.
Judicial ethics
The ancient Greeks were the first to define the concept of ethics. It is not just a moral philosophy; it is a complex set of principles to be used in a certain environment or by a professional group. Judicial ethics represents a code, or rules of conduct, which every judge has to follow to meet the objectives of public justice.
What experience exists in the world as far as judicial ethics is concerned?
Judges’ neutrality, independence, and fairness are the subject of a number of international documents, such as the Universal Declaration of Human Rights and the United Nations Basic Principles of Independence of the Judiciary. These and other international documents provide the foundation for the basic principles of the functioning of the judiciary, such as:
Independence
Neutrality
Fairness and probity
Adherence to norms of ethics
Equality
Competence and diligence
Does Kazakhstan have a code of judicial ethics?
The Kazakhstani Code of Judicial Ethics was approved by the first Congress of Judges in December 1996. It was later revised, and judges are currently guided by a 2001 version. The basic principles of a judge’s conduct have been defined as follows:
A judge should aim to achieve top standards of conduct and then follow them to strengthen the court’s independence and the respect for it. Each judge should respect judicial independence and avoid committing any discreditable actions. Each judge should be a bearer of the judiciary’s respect and prestige.
According to the Code, every judge should show adherence to the judicial oath, strictly follow the law, and conduct him/herself so that there is no doubt as to his/her fairness. A judge should not allow his family, public, or other relations to impact his/her activity. He/she should be informed about the financial interests of his/her spouse and other dependents.
A judge should make a decision based only on a careful finding of facts, according to law, and in good conscience. In the course of proceedings a judge has no right to show by words or actions any biases or inadequate neutrality, and also should not allow any party to do so. A judge has no right to disclose or to use confidential information, which he/she received as a judge, for his/her own benefit.
Being out-of-court, a judge should conduct him/herself in such a way that there is no doubt as to his/her fairness and honesty. His/her conduct should not discredit the judiciary or undermine the judiciary’s authority.
A judge has the right to be engaged in teaching, scientific, or other creative activities with no limits and to be compensated for these adequately. Such activity - including advancing his/her professional skills - should be supported and encouraged.
However, a judge has no right to be a deputy and to engage in business activity.
Please note! If a judge violates the rules of the present Code of Judicial Ethics, the judiciary can consider a disciplinary sanction towards a guilty judge. A citizen may file a complaint claiming an ethical violation with the Union of Judges, which maintains a presence in each Oblast court.
Jurors
Not long ago we only came across the word ‘juror’ in foreign movies. Now, many of us may be called in to court to serve as jurors. Starting in 2007, criminal cases for crimes which are eligible for the death penalty may be considered involving nine jurors and two professional judges.
Who can be selected for the jury?
You can be called in to court to serve as a juror in a trial if you are:
A citizen of Kazakhstan
At least 25 years old
Have never been convicted of a crime
Do not have a mental disorder
Have no prior drug addiction
So don’t be surprised if the municipal officials ask you to provide the following information: your first name, your patronymic name, your second name, your date of birth, your place of residence, and whether you are employed or not. Under Kazakhstan’s Law on Jurors, the municipalities must compile lists of people who are eligible to serve as jurors. If you are asked to provide such information, you do not have a right to refuse or provide false information about yourself; if you do so you may be brought to account accordingly.
Under the law, judges, attorneys, investogators, civil servants, servicemen, and law-enforcement officers may not act as jurors.
Your ethnic background, origin, sex, place of residence, native language, religion, or general attitude to religion may not be used as grounds for turning you down as a juror candidate.
N.B. If you meet all the requirements to serve as a juror candidate, you have the right to demand that the municipality put you on the juror list.
Who may refuse to serve as a juror?
Acting as a juror is a civil responsibility. However, you may refuse in writing to serve as a juror if you:
Don’t understand the language that the criminal case is considered in;
Are physically or mentally unable to serve as a juror;
Are above age 65;
Are a clergyperson.
What do the jurors do?
Once a year, each juror candidate may be asked to attend a trial. At the beginning of the trial, the chief judge will familiarize the juror candidates with the rules of selection, which are established by law. If you are not selected for the jury, you may be called again during the same year to be involved in another trial.
Before the selected candidate begins performing his/her duties, he/she will make the following oath:
“Taking up the duties of a juror, I solemnly swear to perform the duties fairly and impartially, to take into consideration all the evidence, causes, and circumstances of the case presented in court; to decide the case according to my own moral certainty and conscience as a free citizen and fair person ought to do.”
After you become a juror, you will have the right to:
Take part in examining evidence offered at the trial;
Pose questions to parties of the trial through the chief judge;
Take part in examining exhibits and documents, and in examining the area and premises and in all other actions taken at the trial;
Ask the chief judge to explain provisions of laws, as well as the contents of documents referred to at the trial and other unclear matters related to the case; and
Take notes at the trial.
You have these rights so that you can independently examine the circumstances of the case and answer questions that will be asked to the jurors.
N.B. Judges and jurors have equal rights to look into all such matters.
What kind of things should the jurors not do?
The jurors are responsible for many things. So if you swear to perform the juror duties, remember that you should not:
Leave the courtroom while the case is being considered;
Contact other persons not involved in the litigation during hearings without permission from the chief judge;
Collect information about the case outside of the trial;
Disclose things you become aware of at a closed-court trial;
Disclose things you become aware of in a juror deliberation room.
N.B. If you fail to perform your duties as a juror, the chief judge may remove you from considering the case.
Do the jurors get paid?
Yes, a juror gets paid for their service after a specific case is considered. His/her fee equals 50% of the wage of a judge working at a regional court or at a court of similar status. But the fee may not be lower than the wage that your employer would pay you if you did not act as a juror. The time you spent at the trial as a juror must be included in your length of service with your employer.
N.B. As long as you are serving as a juror, your employer must retain you as an employee. During that period he/she cannot fire you or offer you a lower-paying job.
Jury Trials
The first jury was set up centuries ago. Historians believe that the first jury was set up in 829 on estates owned by the Frankish king Louis the Pious. At the beginning of the 19th century, the jury appeared in its current form in England and became an integral part of the judicial system. There are juries now in many countries of the world. Since 2007, jury trials exist in Kazakhstan too.
What does the “jury” mean?
The Kazakhstani jury means a judicial institution composed of nine citizen jurors and two professional judges. Under law, criminal cases for crimes which are eligible for the death penalty may be considered by jurors. Jurors consider and decide whether persons facing criminal charges are guilty or not, and decide their punishment. In so doing, judges and jurors enjoy equal rights to make these decisions.
What are the advantages of the jury system?
The government, developing an institution such as a jury, proceeds from the fact that if a severe punishment may be imposed on a person, further assurances must be given to make sure that the rights of the person are not violated. The jury provides these further assurances and protects people from mistakes of law.
In addition, the jury involves the public directly in rendering justice. Under law, every citizen of Kazakhstan who meets the requirements for serving as a juror has the right to serve on a jury if they are called upon to do so. A juror has the right to take part in examining evidence offered at trial, ask questions of parties to the trial through the chief judge, take part in examining exhibits and documents, and ask the chief judge for explanations of laws. These and other rights give jurors a chance to independently explore the circumstances of the case and answer questions that will be put to jurors. So after people familiarize themselves with the judiciary from within and understand how it works, their confidence in the judiciary and in the government in general will grow.
The jury also provides an excellent chance to compete, which will make lawyers as professional as possible. That is why the development of such an institution in Kazakhstan will lead to the increased transparency of courts and will generally make justice more democratic.
How are jurors selected?
Municipalities compile lists of juror candidates. Under law, they are obliged to make several lists: initial, common, reserve, and additional candidates. Municipalities use lists of voters as the basis for their lists. Those individuals who do not meet the requirements for juror candidates are removed from the list.
The following people cannot be placed on the list of juror candidates:
People under the age of 25;
People who have been convicted of a crime;
People found disable or partially disable in court;
Judges, attorneys, investigators, lawyers, civil servants and servicemen, as well as law-enforcement officers; and
People who are currently receiving treatment for drug addiction or mental disorders.
After municipalities make the list of juror candidates, they will give people the opportunity to review the lists and take corrective action if there are any mistakes. The final selection of jurors is made randomly from the lists. These lists are then submitted by municipalities to courts.
N. B. If you receive a notice of a venue and a time of the trial, you are obliged to appear in court to take part in selecting the jurors. Failure to appear without good reason will make you liable under Kazakhstani law.
New Courts in Kazakhstan: Economic and Administrative Courts
Specialized courts were set up several years ago in Kazakhstan. Economic courts help entrepreneurs settle disputes faster, and administrative courts consider administrative misdemeanors.
What types of cases are considered in interdistrict economic courts?
If you are an entrepreneur and a dispute arises during the course of your business between you and someone else, you have the right to settle the dispute in interdistrict economic court. These courts were recently created in all the regional centers and Almaty and Astana Cities. They are referred to as the “interdistrict courts” because they serve people living in the city or the regional districts. For example, the Almaty City Interdistrict Economic Court considers cases over property and non-property disputes in which residents of the entire Almaty City, doing business as individuals, as well as some corporations in cases stated under law, are parties.
Individuals involved in cases considered in interdistrict economic courts are referred to as the “parties,” and the individuals in civil suits are referred to as the “plaintiff” and the “defendant.” They have equal rights and obligations.
Parties not pleased with judgments passed in interdistrict courts are entitled to appeal them to the civil boards of regional courts of Almaty and Astana city courts. Further appeals or protests of judgments passed by the board of appeals takes place pursuant to the civil legal proceedings.
What types of cases are considered in interdistrict administrative courts?
Interdistrict administrative courts consider cases over administrative offences falling within the jurisdiction of such courts. These specialized courts were recently created in the regional centers and in Almaty and Astana Cities.
Administrative courts consider different types of cases that by nature are not considered offences, but represent a failure to meet the requirements set under rules, instructions, regulations, and laws. They are grouped by sector:
Offences against individuals and their rights;
Offences in the transport sector;
Offences in the private sector;
Offences in the trading and financial sectors; and
Offences against public security, health of people et al.
Administrative courts consider cases over officials violating individual rights. For example:
If you have the right to be granted Kazakhstani citizenship and an official impedes that;
If an official refuses to take any of your documents, petitions, or complaints saying that he/she does not understand your language;
If an official tries to restrict your right to freedom of movement and of your choice of place of residence; and
If an official restricts your access to information.
The complete list of violations can be found in the Administrative Code of Kazakhstan.
Administrative courts also consider cases over illegal inspections of entrepreneurs and the deception of consumers. They also consider cases over bringing individuals and corporations to account for committing administrative offences. Such offences include:
Illegal consumption of gas, electricity, or water;
Illegal construction;
Illegal hunting and felling of trees;
Home production and sale of spirits; and
Gambling in places prohibited under law.
How are cases considered in interdistrict administrative courts?
If you committed an administrative offence or were the victim of such an offence, an official will produce the report. In doing so, he/she has to advise you of your rights and obligations. You have the right to read the report and sign it. The official must provide you with a copy of the report.
The report will be submitted to a judge. Cases over administrative offences are considered within fifteen days upon receipt of the report and other case materials by the judge. Many people may be involved in considering the case: the judge, the person brought to administrative account, a victim, their representatives, a defense lawyer, an attorney, and any other concerned parties. A person brought to account has the right to explain the circumstances of the case, offer evidence, and file petitions.
After considering the case, the judge may either issue an administrative penalty or dismiss the case.
N.B. You may appeal the judge’s ruling on the administrative penalty to a superior court within ten days from the date a copy of the ruling was served to you. The ruling may be protested by the attorney within the same time.
Parties to a Trial
Since the moment that jurisprudence came into being, special terms have been used at trials. Definitions are given as the society develops, and are provided under law. For example, when you go to court to get your rights protected, you become a plaintiff. At trial, you would be referred to as the “party.” At first this all seems complex. However, it is possible to understand it.
What do “parties to a trial” mean?
Kazakhstan’s Constitution provides for the individual rights to legal defense. There are now courts in Kazakhstan that consider civil and criminal cases, as well as specialized interdistrict economic and administrative courts. Individuals and corporations involved in such cases are referred to as the “parties.” They all have their interests and take part in considering cases to defend themselves.
What are the rights of a plaintiff and defendant?
In a civil suit, a party filing a claim for the protection of its rights or interests is referred to as a “plaintiff.”
The other party that in the plaintiff’s opinion violated its rights or challenged them is referred to as a “defendant.”
The plaintiff and the defendant have equal rights to:
Participate in the court sessions;
Collect and offer evidence at the trial and to examine it;
Give explanations at the trial on all matters looked at;
Express their opinions about the evidence;
Appeal a judgment if they do not agree with it;
Take part in considering their complaints in superior courts.
The plaintiff and defendant have the right to enter into amicable agreement.
The law obliges the plaintiff and the defendant to exercise their rights in a fair manner and to cover statutory expenses.
Parties to a Criminal Suit
In a criminal case the parties split into prosecution and defense.
Prosecution
Prosecution includes:
Investigating and inquiring authorities: an inquirer and an investigator;
An attorney, referred to in court as a public prosecutor;
A victim who in cases over minor crimes acts as a private prosecutor;
Civil plaintiff and legitimate representatives of the victim, of the private prosecutor, and of the civil plaintiff.
Defense
A person who is brought to criminal account when a criminal suit is brought against him/her and he/she is taken into custody is referred to as the “suspect.”
N.B. A person will be only considered the accused when charges are brought against him/her.
After the case is taken to court and a trial date is set, the accused will become a defendant. If the defendant is found guilty at the trial he/she will be considered the convicted. If he/she is found not guilty at the trial the person will be relieved of all charges. In other words, the defendant will be considered discharged and will have all rights he/she had before he/she was brought to account.
Starting from the moment when the criminal case is brought against the person and during the trial, that person and his legitimate representatives have the right to employ a lawyer. Together, they are referred to as the defense.
Parties in cases to be considered in economic and administrative courts
Persons involved in cases considered in specialized interdistrict economic courts are referred to as plaintiffs and defendants in civil suits.
As to cases to be considered in specialized administrative courts, a person against whom a suit was brought, his/her legitimate representative, and a lawyer, will be considered the defense. A victim and an attorney will be considered the prosecution.
N.B. An attorney has to be involved in considering a case over a crime committed by a minor, as well as in considering a crime involving an administrative custody.
Proceedings of Civil Cases
“It’s better to just be an observer at a trial.” This is apparently what a successful lawyer once said. Involvement in any litigation means following lots of procedures and making related efforts. Some of them can be avoided if you examine the details of the litigation and understand the main issues of the proceedings.
What is meant by civil proceedings at law?
The laws provide for the protection of different violated rights and interests of individuals: family rights and interests, home-related rights, property rights, labor rights, etc. If individuals believe that their rights and interests of this kind have been violated, the law gives them a chance to file a claim directly to court. Such a claim is referred to as a “petition.” Upon its filing a civil suit is brought.
Petition means a main document, containing claims, for which all the proceedings have to follow. That is why there are special requirements under law that a plaintiff has to meet.
The plaintiff has to:
Indicate his/her first name, patronymic name, last name, and place of residence. If a corporation acts as a plaintiff, then its name, location, and bank details have to be indicated. The plaintiff has to provide similar details of the defendant.
Indicate the merits of the claim(s). The plaintiff has to indicate what specifically has been violated and what he/she wants of the defendant: whether he/she wants him/her to return things, whether he/she wants him/her to pay some money; whether he/she wants a divorce; whether he/she believes a contract was not concluded in his/her best interests and therefore has to be invalidated; or a resolution by governmental authority infringing upon his/her rights or legitimate interests et al;
Substantiate the petition, i.e. state the grounds on which the plaintiff filed his/her petition against the defendant. Grounds on which the petition may be filed include a contract, marriage and its registration, or damage caused and acknowledged by the respective documents;
Amount in controversy if the petition can be valued; and
A list of documents to be attached by the plaintiff to the petition.
Samples of these and other forms, and any other additional information, can be found in each court.
N.B. The number of copies of the petition and of the documents to be submitted to court must be equal to the number of defendants and parties mentioned in the petition.
If the petition does not meet the basic requirements, the judge will rule for the dismissal of the suit. The judge has to inform the plaintiff and set a time within which corrective action must be taken. If the plaintiff meets the requirements set in the ruling, the petition will be considered filed on the day of its initial submission to court. Otherwise the petition will be considered not filed and will return to the plaintiff.
N.B. The ruling may be appealed by the plaintiff.
To fully and actually protect the constitutional rights, liberties, and interests of people, the law gives people the right to file a petition against the same person again, on the same subject, and on the same grounds, provided that he/she has taken the respective corrective action.
N.B. When filing a petition the plaintiff must to pay the respective duty. If the duty is not paid, the petition will be dismissed.
When filing the petition, the plaintiff is entitled to request that action be taken to secure the petition. This includes:
Attaching assets owned by the defendant and held by him/her or by other parties;
Forbidding the defendant to take particular actions;
Forbidding other parties to hand over assets to the defendant or fulfill other related obligations; and
Suspending enforcement of a resolution, instructions, an order et al, by governmental authority, organization, or official, and challenged by the plaintiff.
Because action to secure the petition affects the assets, business, and other activities of a party, judgments by court may be appealed by the parties and reviewed.
What happens after a civil suit is brought?
After a civil suit is brought, the judge starts getting prepared for trial. The plaintiff and the defendant are questioned over the merits of the petition, and their petitions for summoning and questioning witnesses and experts are considered. The judge may request documents and order examinations. The plaintiff, defendant, and all parties involved in the proceedings have to appear in court and obey the judge’s orders.
When considering the case in court the plaintiff and the defendant as parties to the litigation have equal rights to personally take part in the litigation, examine evidence and assess it, testify, and look into all matters taken up during the course of the litigation.
At the trial the plaintiff is entitled to dismiss the petition and the defendant is entitled to accept the petition. They are also entitled, as mutually agreed, to enter into amicable agreement.
N.B. Dismissal of the petition must be accepted by the judge and the amicable agreement must be approved by the judge.
Rights and Responsibilities as a Plaintiff in Court
If you believe that your rights and interests have been violated, you may seek protection in court. To do so, you need to file a written claim. Once you file a claim for protection of your civil, family, property, land and labor rights, you will be referred to as a plaintiff.
How do you defend your rights?
The claim must meet certain legal requirements for the court to accept the claim and bring a civil suit. If it does not, the court may dismiss your claim or return it to take corrective action. The rules are simple and it is very important for you to follow them because if true information is provided in the claim, it may take much less time to solve the case.
How should the claim be filed?
The claim has to be filed in writing. You may either write it yourself so that it can be read easily or ask someone to write it for you. The claim may be typed using a PC or similar machine.
N.B. The claim must be signed by the plaintiff personally.
A representative can file the claim for you if you are not able to. In this case the representative must have a proxy, issued by the plaintiff, and attach a copy of it to the claim.
The claim must not be made in only one copy since the defendant has to understand prior to the trial what the plaintiff seeks. That is why you will be obliged to provide as many copies of the claim as required to provide to all the defendants and third parties.
You will be obliged to indicate the following in the claim:
Precise name of the court the claim is being filed in. To do so it is necessary to determine the jurisdiction within which the case falls, before the claim is filed;
First name, patronymic name, and last name of the plaintiff, and his/her place of residence;
If a corporation acts as a plaintiff, its location and bank details;
Rights or interests that in your opinion have been violated or may be violated and need to be protected accordingly;
The subject of the claim, i.e. the merits of a dispute between the plaintiff and the defendant;
Grounds for the claim: circumstances that gave rise to the claim;
Proof of circumstances serving as a basis for your claim;
Amount in controversy, if the claim can be valued;
A full list of documents to be attached to the claim.
N.B. The amount in controversy is to be indicated only if the plaintiff intends to get a specific amount of money from the defendant as compensation or otherwise. Such an amount would be considered the amount in controversy.
N.B. A receipt to confirm payment of the respective duty must be attached to the claim.
Samples of these and other forms, and any other additional information, can be found in each court.
What rights does the defendant have?
The defendant, as a main party to the trial, has a number of rights. They include the right to:
Familiarize himself/herself with the material of the case, make extracts and copies of it;
Challenge evidence;
Furnish evidence and take part in examining it;
Ask questions to other parties involved in the case, to witnesses, experts and specialists;
File petitions, including those for further evidence;
Give oral and written explanations in court; and
Advance arguments over all matters looked into at the trial and take part in pleading.
You as a plaintiff also have the right to change a ground or subject of the claim, increase or decrease the amount in controversy, enter into amicable agreement with the defendant, or dismiss the claim.
N.B. Dismissal of the claim is irreversible. You have to be very careful in doing so because after you dismiss your case you cannot file a claim again on the same subject and on the same grounds.
What obligations does the plaintiff have?
You as a plaintiff have certain obligations as well. You have to exercise your procedural rights in a fair manner, follow procedures set by the law, follow orders issued in court, and respect the court.
Your Rights and Responsibilities as a Victim in Court
If you believe that criminal actions have been taken against you, or if someone is threatening you with a crime, you should contact the police and investigative authorities. If they initiate a criminal case, you will be considered the victim.
What rights does a victim have?
A victim can take an active part in proceedings. You have the right to defend your violated rights and interests.
You have the right to:
Know what the accused has been charged with;
Testify in your native language or in a language you can speak and get a translator for free;
File petitions for the interrogation of witnesses, experts, and other parties;
Take part in investigating activities of the case, get familiarized with the reports on such activities, and make comments on them;
After completion of the investigation get all materials of the case to look at and extract any information from; and
Get original documents that you own and copies of the respective rulings.
If you think that the expert, the investigator, the attorney, or the judge violated your rights as the victim, you are entitled to challenge them. You can even ask to replace them. At a trial, the victim together with the attorney supports the prosecution. In other words, you have the right to take part in interrogations, examinations, and other investigative activities. You as a victim may take part in pleading.
N.B. A victim has the right to appeal the sentence and the judgments, take part in the consideration of complaints, petitions, and protests in appellate and review courts.
How is the damage caused to the victim undone?
It is provided under law that damage to a victim’s property must be undone. In addition, you as a victim can be compensated for losses incurred in taking part in the investigation, the trial, and/or paying your lawyer.
In case of criminal action, you may file a claim for moral damage. If such a claim is not filed in a criminal case or is not considered, you will have the right to file it in a civil action.
N.B. You will have the right to reconcile yourself with the suspect or with the accused that committed a minor crime or first committed a lesser crime if they undo the damage caused to you by helping you recover your damages and reimbursing your expenses for medical treatment.
Rights of an Accused
No one may be convicted until his/her guilt is proven in court.
What rights does the accused have?
Even if you are charged with a crime, you have the right to look into the charges and defend yourself.
A ruling to accuse a person is the very first document, evidencing the fact that the person has committed some crime. If there is such a ruling about you, it means that from now on you are the accused. It is clear that it is a stressful situation that has a significant psychological impact. That is why you as the accused should know your rights.
If you have been charged, you have the right to:
Understand why, and on what charge, you are being brought to criminal account;
Get a copy of the indictment;
Demand that the investigators explain what you are charged with and what article of the criminal code such charges are governed by;
Get from an accusing authority (i.e. the investigators) a copy of the ruling of the custody; and
Decide whether you should testify or refuse to testify.
N.B. Testifying is the right, but not the obligation, of the accused. It is prohibited under the law to force the accused to testify.
If you as the accused decide to testify, you have the right to say whether you plead guilty, plead partially guilty, or plead not guilty.
You will also have the right to:
Offer evidence by handing over instruments of a crime, documents, photos, other articles, or by noting their whereabouts;
File oral or written petitions for the interrogation of individuals who may testify as to the circumstances under which the crime was committed, your alibi, or provide information on a place you have been in;
Request documents, the seizure of items and belongings; and
Take party in investigating activities and familiarize yourself with the reports of such investigating activities.
N.B. If you notice any violations during the course of investigating activities or during the course of making the report, you have the right to make written comments.
You have the right to testify in your native language or in a language that you speak. If you don’t speak the language you will be provided with a translator for free.
When may the accused request a lawyer?
You have the right to have a lawyer. Attorneys at law, husband or wife, close relatives, or other legitimate representatives of yours may act as your lawyer(s). The law provides for the compulsory involvement of a lawyer as requested by the accused, if the accused is under 18, or is physically or mentally disabled, thus being unable to defend himself/herself, or if he/she does not understand the language that the investigation is conducted in. The law also provides for the involvement of a lawyer if the accused is taken into custody.
N.B. The lawyer may get involved at the moment you are found suspected or accused.
You as the accused have the right to meet one on one with as many lawyers as you want and as long as you want prior to the first interrogation.
N.B. Investigators are obliged to involve the lawyer and ensure that the accused can exercise his/her rights. Investigators are obliged to ask the accused and his/her lawyer what proceedings they want to take part in jointly and give them such an opportunity.
What do you do if the rights of the accused are violated?
Upon completion of the investigation the accused has the right to familiarize himself/herself with all the case material and extract any information from it he/she chooses. If the case is taken to court you will get a copy of the indictment and a list attached thereto. If you believe that your statutory rights have been violated and wrong decisions made about you, you may complain about such decisions and judgments.
N.B. Investigators are obliged to explain to you where and what authorities you may complain to! |
