On the features and main issues of online court proceedings in Kazakhstan
Author: Bakhyt Tukulov
Partner, Tukulov & Kassilgov Litigation
In March this year Kazakhstan courts shifted to an online format of hearing cases in light of the COVID-19 pandemic. Below, we share our observations on the features and main issues which arise in the course of online court proceedings in the Kazakh courts.
1. The new format
When we say online court proceedings, we do not mean that judges and the court’s staff work remotely. Courts continue to work as usual. Judges and clerks continue to stay in courtrooms, except that disputing parties participate by video conference (primarily through TrueConf or WhatsApp applications). In this article, by “online court proceedings” we refer to the format where the parties participate remotely.
2. Features (Issues):
Based on our experience and the experience of our colleagues, we observe the following:
3. Are we ready for online justice?
We cannot speak for all judges, but the judges whom we spoke expressed the view that the online format is a temporary necessity in light of the COVID-19 situation. Judges admit that face-to-face hearings with parties are preferable, as they make it easier to understand a dispute, read intentions and facial expressions of the parties, explain issues and discuss facts.
The judges to whom we spoke agree that they spend more time on the online format, as it takes time to set up a video conference and fix technical issues, although we admit that, as judges and parties get used to the online format, it may take significantly less time.
Conducting court proceedings online is convenient to parties and relatively cheap. Remote legal proceedings can significantly increase availability of justice for the larger population, particularly in a large country like Kazakhstan, as it avoids long and expensive travel, saves lawyer’s time, hence lowers legal fees.
In our view, certain categories of civil cases could be permanently transferred to the online format: this concerns mainly with cases where there is no dispute over the authenticity of evidence, no witnesses are involved, no other issues arise that may require presence of the parties in person. A certain maximum monetary threshold could be applied to such cases. Cases above the threshold would have to be heard in person.
Introduction of the permanent online format for a less contentious category of cases could help to improve workload situation in busy courts. For example, if case files are entirely electronic, they could be distributed to other less busy courts in Kazakhstan (cases from Almaty court be diverted to other regions, as it would not matter where the judge sits. Jurisdictional issues may have to be revised in that case).
4. What should be done?
Current procedural law and the administration of court proceedings are not sufficiently prepared for the online format. In our view, the top priority should be to complete transition into a fully electronic case management: an electronic case file. The file should be available to the parties online. It would resolve many of the issues discussed above: examination of the file by the parties, the need to print and verify completeness of the file, etc. It would reduce paperwork and have a positive environmental and cost impact.
Such changes require modification of the rules of civil procedure. For example, modifications into the law could allow a party to seek postponement of the court hearing if he (she) was unable to present a case due to connection issues. Amendments could provide restrictions on the submission of new evidence in online proceedings following a certain strict deadline. It would ensure greater predictability of the judicial process (currently, parties are required to submit evidence before the preparation stage of the case is complete. However, courts do not strictly observe this rule. As a result, a judge may be “surprised” with new vital evidence later in the proceedings).
Amendments could stipulate a procedure for recording situations where a party was disconnected from the online court proceeding, whether a secretary tried to contact the party, how many times he (she) tried to reach the party, etc. Rules governing public participation in court hearings and privacy of court proceedings could also be updated to reflect the features of the online format.
In our view, to resolve existing issues of online court proceedings, the Republic of Kazakhstan Supreme Court could issue a guidance reflecting many of the issues discussed above. We, as legal community, are ready to provide all possible assistance.