In connection with the COVID-19 pandemic and the various restrictive and prohibiting measures by states, it is important to be aware of the possibility of submitting disputes to courts, taking into account how their working regime has changed.

In this alert, we describe some of the issues related to the work of the courts during the emergency regime imposed by the Decree¹ (“emergency regime”). In this review, we also discuss the impact of the emergency regime on the statute of limitations and procedural terms prescribed in the civil procedure law. 

1. Working regime of courts during the state of emergency

a) Due to the state of emergency, the Supreme Court ordered courts to change their working regime 

From the information published on the website of the Supreme Court of the Republic of Kazakhstan,  the Chairman of the Supreme Court has ordered courts to strictly observe the quarantine measures of the emergency regime to reduce the risk of spreading COVID-19. 

As part of this order, it was noted that in connection with the quarantine in the cities of Nur-Sultan and Almaty, the courts of the respective regions were recommended to leave the minimum required number of the staff of the courts in order: (1) to consider cases on the violation of the emergency regime, and (2) to handle urgent cases regarding national security (“priority cases”). 

b) The working regime of the courts in the cities under the quarantine regime 

In connection with the above-mentioned order, in cities under the quarantine regime, the cases are considered by the minimum necessary number of judges, who, we understand, consider only priority cases. We understand that the court hearings in such cases are held using a conference call. 

Therefore, the courts of the cities under the quarantine regime (Nur-Sultan, Almaty, Atyrau, Shymkent the Mangistau region and a few others), have suspended the consideration of civil cases initiated before the emergency regime. The state authorities are currently considering closing other cities for quarantine as well. 

The courts use various justifications for suspending the proceedings, including the provisions of the Decree and article 20 of the Civic Procedure Code², stipulating the requirements for ensuring security in the course of hearings. 

In addition, the Normative Resolution of the Supreme Court³ allows suspension of proceedings due to unforeseen and emergency circumstances that impede the consideration of the case. Regarding the newly filed statements of claim during the emergency regime, as we understand from current practice, courts often reject their acceptance with reference to the Decree, as well as the decision of the chairman of the relevant court, sending an electronic notification to the applicant through the judicial office and without making any procedural decision. 

While the proceedings of previously initiated cases have been suspended, and new claims have been refused to be accepted, it remains unclear what is the procedure for resolving urgent matters that require urgent consideration, in particular measures to grant injuctive relief and allowing motions to secure evidence.

c) The working regime of the courts in cities where the quarantine regime has not been imposed 

As we understand, the courts of the cities where the quarantine regime has not been enacted continue to work without reducing the number of the staff of the courts. However, as we understand, the court hearings are held exclusively by a conference call. 

The above is understood by the fact that the following notification appears on the website of the Supreme Court when entering the judicial office: 

“In connection with the enactment of the emergency regime by the head of the state in the country, the court hearings are held only with the help of VCC (video conference call) and MVCC (mobile video conference call). We ask you to read the instructions for MVCC.”

However, according to the latest information from the press office of the Supreme Court from March 30, 2020, the court hearings use, in addition to the mobile app TrueConf (the official application used by the courts for VCC), the following applications that provide video conference calls: Zoom, Skype, and WhatsApp.

The press service of the Supreme Court recommends: (1) to use these applications for video conference calls in order to attend court hearings, (2) to reduce the overload of the courts by postponing consideration of complex cases with numerous parties involved where possible.

The press office also asks litigants to submit all types of appeals to the courts through the judicial office, and not by personal delivery.

2. Impact of emergency regime on statute of limitations and proceduaral terms

a) The impact of the emergency regime on the statute of limitations 

As a general rule, a claim may be submitted to the court within three years from the date when the person became aware or should have become aware of the violation of the right⁴.

At the same time, according to Article 182 of the Civil Code, the statute of limitation is suspended if the claim’s submission to the court was prevented by an extraordinary and unavoidable event under these conditions (force majeure). For applying this rule, the burden of prove of the occurrence of force majeure lies with the party that refers to the foregoing rule.

As we noted above, in the courts of the cities under quarantine, the courts often do not accept newly filed claims.

Despite the possible rejection, we still recommend filing claims without waiting for the end of the emergency regime in order to receive an electronic confirmation of their rejection and to use such confirmation in order to extend the statute of limitations.

In this regard, if the emergency regime prevented the filing of the claim to the court, the party can benefit from a suspension of the statute of limitations.

b) The impact of the emergency regime on procedural terms 

The Civic Procedure Code establishes various procedural terms for appealing judicial acts, in particular, the procedural deadline for appealing the decision of the court of first instance is one month from the date the final decision is issued⁵, and the procedural deadline for appealing decisions of the court of appeal is six months from the date of their entry into force⁶.

At the same time, Article 126 of the Civic Procedure Code provides for the restoration of procedural terms, if they are missed for the reasons recognized by the court as a good excuse.

We note that any appeals to the court can be filed remotely through the judicial office, so it may be difficult to prove the validity of missing the procedural term due to the emergency regime. In this regard, we recommend using the judicial office to comply with the procedural deadlines.

At the same time, if the emergency regime really prevented the possibility of filing the procedural document, for example, because of the inability to issue the power of attorney by a foreign person who is quarantined, then this person can ask for the restoration of the procedural period for filing the appeal.

Considering the foregoing inconsistent court practice, we support the initiative of the Kazakhstan Bar Association , which sent a letter to the Chairman of the Supreme Court with a request to ensure that courts apply uniform practice for the suspension of consideration of lawsuits.

If you have any questions regarding the above comments, please contact us. We will be happy to provide all necessary help and advice in resolving your issues.

1. After the Decree of the President of the Republic of Kazakhstan on "Imposition of the emergency regime in the Republic of Kazakhstan", in connection with the announcement of the World Health Organization of a new coronavirus COVID-19 pandemic an emergency regime was enacted in the whole territory of the Republic of Kazakhstan No. 285 dated 15 March 2020 (“Decree”).↩
2. Civil Procedure Code of the Republic of Kazakhstan No.  377-V dated 31 October 2015.↩
3. The Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On application by the courts of some norms of the civil procedure laws” No. 2 dated 20 March 2003.↩
4. Article 178.1 of the Civil Code of the Republic of Kazakhstan No. 268-XIII dated 27 December 1994.↩
5. Article 403.3 of the CPC RK.↩
6. Article 436.1 of the CPC RK.↩