Kazakhstan to Minimize the Number of Appellate Levels

1. Today’s five-tier judiciary in Kazakhstan

In May 2015, Kazakhstan President Nursultan Nazarbayev presented his 100 Particular Steps program, which proposed, among other things, major judicial reforms in the country. According to Step 16 of the program, Kazakhstan will make a transition from the current five-level judicial system (trial plus four types of appeals) to a new three-level system. Today, there are four types of appeal available after a district court trial:

(1) appeal (I will call it “appeal proper”), i.e. first appeal as of right in a provincial court;
(2) cassation, i.e. second appeal as of right in a provincial court;
(3) first supervisory review, i.e. discretionary appeal in the Supreme Court; and
(4) second supervisory review, i.e. second appeal in the Supreme Court initiated by the Chief Justice or Attorney General.

2. The difference between appeal and cassation

Provincial courts render two appeals as of right (1 and 2 from the above list). Judges on both appeals review the cases from inferior courts and decide on propriety of their orders. What is the difference between appeal proper and cassation? On appeal, a provincial court reviews trial judgments that have not yet taken effect. Trial judgments do not become effective on the day they are issued. The losing party that is served with the judgement has 15 days from the date of service to appeal to a provincial court. If the judgment is affirmed by the provincial court, or not appealed at all, it takes effect, and the winning party may collect on it. However, the judgment (and the appellate decision) may still be appealed as of right in the same provincial court. This is what the Kazakhstan Civil and Criminal Procedure Codes call cassation. Cassation, as Black’s Law Dictionary defines it, is the court’s power to quash (French casser) the decrees of inferior courts. My question is, if I have lost a trial and an appeal and the winner already has collected the judgment against me, would I care or even attempt to appeal any further?

3. What is a supervisory review?

The supervisory review is a discretionary appeal in the Kazakhstan Supreme Court. A party who wants to appeal a case in the Supreme Court must obtain a leave (or permission) for review. A panel of three randomly selected Supreme Court justices decides by the majority of vote (2 to 1) whether to grant such leave. Kazakhstan, as a former part of Soviet Russia and the Soviet Union, inherited supervisory review from the Soviet legal system, where “supervision” power over the uniformity of judicial rulings was bestowed upon the Soviet Russian Supreme Court in the 1920s.

The European Court of Human Rights criticized the Russian-style supervisory review because such review destroys the finality of court orders. A convoluted story of a civil lawsuit is set forth in a European Court case Ryabykh v. Russia, no. 52854/99, ECHR 2003-IX. In Ryabykh, applicant Anna Ryabykh had been saving money to buy her own home for decades; unfortunately, following the unsuccessful economic reforms and subsequent inflation, her savings’ value substantially dropped by 1991. To indemnify savings account holders’ losses from the ill-fated economic experiments, the government passed the Savings Act of 1995 (Russian text is here), which announced all personal savings to be Russia’s public debt and required their indexation at the inflation rates.

Ms. Ryabykh sued the government to index her savings account and won the first trial in a district court. An intermediate appellate court reversed and remanded for a second trial, which Ms. Ryabykh won again. The government did not appeal the decision in the second trial, and the judgment became final. On supervisory review, however, the presidium of the intermediate appellate court reversed the judgment, and then the Russian Supreme Court remanded the case for a third trial. After the third trial, the intermediate appellate court reversed the judgment and ordered a fourth trial, and so on. Altogether, Ms. Ryabykh had six trials in the district court. Her compensation was significantly reduced in the last judgment. Nonetheless, the government again appealed, and the intermediate appellate court dismissed the appeal. The parties subsequently settled the case, and the government bought Ms. Ryabykh an apartment.

Ms. Ryabykh filed an application against Russia with the European Court of Human Rights alleging, inter alia, a violation of her right to a court, because the “final” judgment in her favor was overturned by the appellate court. The European Court held that the reversal of the final judgment by the intermediate appellate court violated the European Convention on Human Rights. The Court said that “[h]igher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination.” Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX.

4. How many judges will ultimately hear a case?

The Soviet-style supervisory review alone is considered unfair by many, but today’s entire appellate system in Kazakhstan raises a lot of questions. While jury trial is not available for civil cases in Kazakhstan, and a single judge decides all cases, a litigator could reasonably expect a panel of at least three judges to review the case on appeal. However, there is only one judge on the first (and the most important) appeal as of right. Litigants argue before a three-judge panel on cassation, but by that time, a fallacious judgment may have taken effect and perhaps even have been enforced.

In the Supreme Court, which currently has 33 justices, a five-justice panel will review the case if a three-justice panel grants leave. Under special circumstances, when an erroneous Supreme Court order may hurt someone’s life or Kazakhstan’s economy or security, the country’s Chief Justice or Attorney General may order yet another supervisory review without any leave. On the second supervisory review, a seven-justice panel will hear the case.

The ultimate number of judges hearing a case in sequence may be represented by the formula 1-1-3-(3)-5-7.

1 district court judge
1 provincial court judge
3 provincial court judges
(3 Supreme Court justices granting or denying leave for review)
5 Supreme Court justices
7 Supreme Court justices

5. It is unclear how the new system will work

The judicial reform will eliminate the supervisory reviews. The 100 Particular Steps program does not specify how the new system will work, it only calls for changes and sets forth three tiers of judiciary: trial, appeal, and cassation. I, of course, do not expect the Kazakhstan Supreme Court be abolished; therefore, I believe cassation will likely be elevated to the Supreme Court, provincial courts will hear appeals, and trials will be left for district and specialized courts. It is a mystery whether cassation will become a discretionary appeal or remain as of right. I doubt the latter, because the 33 Supreme Court justices will not be able to handle the increased flow of appeals. So far, the Draft Civil Procedure Code published on the Supreme Court’s website reflects none of the new judicial reform proposals. Surely, it will be rewritten within a year or so.

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