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:

1. Connection quality during video conferences is a serious issue (interruptions, echo, signal delays, etc.). This may seriously affect the parties’ right for proper judicial protection and the right to be heard. It also raises a question if a party which, due to bad connection, was unable to properly present its case to the court may seek postponement of the court hearing. On the other hand, such right may potentially lead to abuse of process if invoked improperly. Low connection quality and associated difficulty to properly present a case forces parties to put greater emphasis on written submissions.
2. Examination of the court’s case file has become an issue (although required by law, parties rarely provide the counter party with sufficient copies of all its submissions. Therefore, to be prepared, parties have to examine the court’s file several times during the court case. They have to visit the court to verify they have all of the relevant documents). Courts keep the file in paper format (all documents submitted in paper or electronically are compiled into one single file). Sometimes, parties are refused to enter the court’s building, and one has to make copies outside the building due to the COVID-19 situation. Implementation of electronic case file and case management could allow the parties to study the file remotely, without visiting the court and distracting the court’s staff.
3. Issues arise with completeness of the court’s file. As mentioned, the file is kept in paper format. However, increasingly, documents are submitted electronically via “Judicial Cabinet” online service. When one submits a document electronically, as the file is kept in paper, a secretary must print out the electronic document and put it into the file. However, secretaries sometimes fail to observe this requirement. When a document or appendices are large, secretaries do not print them to save paper. As a result, when a judge reviews the case, not all submitted documents may be available in the file. This practice requires parties to repeatedly examine the court’s file to verify that all electronic submissions are printed and in the file is complete. This further increases the need for electronic file and case management.
4. Risks of forgery of evidence have increased. During proceedings in person a party is usually given the opportunity to examine original copies of evidence presented to the court ( party could immediately spot fake signatures, stamps or other signs of fraud). In the online format, parties may rarely examine original copies of documents submitted to the court. To do so, they would have to visit the court, assuming that such party presented the original copy of the document to the court. However, courts rarely require that relevant original copies are submitted. This may create favorable conditions for submission of fake photocopies of documents. To verify the evidence a party may request the court to postpone the hearing to visit the court and examine the evidence. However, due to strict timelines of court proceedings in Kazakhstan (e.g. no more than four months in the District Court), judges are frequently unable to postpone the hearing. This again affects the parties’ right for effective judicial process.
5. There have been many complaints about insufficient transparency of court proceedings to the general public. Many of such complaints came from journalists. Usually, anyone can participate in open court hearings held in person. This has become problem in the online format. Questions arise as to how to make court proceedings open to public via the online format? At the same time how to ensure the confidentiality of online court proceedings held in a closed format (for example, one can record a videoconference held through WhatsApp and publish it on the internet). How the court can ensure that a witness who testifies in court is not influenced by any party. For example, either party could instruct the witness behind the screen.
6. Our colleagues say that there were cases where they had been disconnected from court proceedings, and they could not return to the video conference. There have been complaints that court proceedings were conducted without either party.
7. We have heard anecdotes where a witness testified to court while playing golf, or a lawyer was smoking a cigarette or driving a car during a court hearing. We are aware of a case where a judge pointed the camera at the ceiling, and the parties watched a ceiling throughout entire hearing. This is not an exhaustive list, but it can give readers a glimpse of how Kazakh courts conduct hearings online.

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.