On legal mechanisms for limiting information on the Internet

24.04.2018

Civil law: the old and the new edition.

Opinions of the expert community of the Kyrgyz Republic.

The science of civil procedural law, or civil procedure, is one of the fundamental areas of legal knowledge. Its value is determined by the objective role of civil procedural law in the regulation of public relations in the administration of justice in civil matters.

The study of the procedural aspects of the activities of state bodies exercising the protection of the law is not only the object of science, but also the academic discipline of the civil process, since their function, like the court, is connected with the protection of the rights and legally protected interests of citizens and organizations.

The process is a form of life of the law, and the norms of regulatory (substantive) law are of immediate importance for the knowledge of many institutions of civil procedural law, especially such as jurisdiction, parties, lawsuit, evidence.

According to the amendments, a number of new laws adopted in 2017 came into force in the legislation of the Kyrgyz Republic on January 1, 2019. However, already in 2017, the Civil Procedure Code entered into force. The adoption of a new version of the Code of Civil Procedure by the authorities leads to raising the efficiency of the courts and improving civil proceedings:

  • Instance changes

In order to increase the stability of the court decision, the instance procedure of civil proceedings was revised:

  • Courts of first instance – district courts – consider all civil cases on the merits, while the consideration of cases is mainly carried out individually, and in cases provided for by law, collegially;
  • Courts of second instance – the appellate court – consider civil cases consisting of three judges with the right to return the case for a new consideration to the district court (incomplete appeal);
  • The Supreme Court of the Kyrgyz Republic – the Court of Cassation – examines the complaints of the parties on the correct application of substantive and procedural law by lower courts.

What has changed?

  • cassation procedure for appealing against decisions of the court of first instance by the courts of second instance is excluded
  • court decision not appealed second time cannot be appealed in cassation

What is a result?

  • reduction in the review process of court decisions
  • non-duplication of court decisions and proceedings
  • discipline during the court itself
  • the obligation of the participants to appeal within a certain period of time

Changes in the payment of state duties.

What was the problem?

In the old version, the state duty was paid as a result of the consideration of the case.

The requirement to pay the state fee led to the fact that when filing a claim, the claimant did not make the appropriate calculations regarding the claims to be collected and the evidence presented, he requested a high interest, but did not pay the state fee. In view of the above conditions, the execution of a court decision regarding the collection of state duty based on the outcome of a case was often unpromising. As a result, the state budget did not receive significant amounts.

What changed?

Under the new edition of the Civil Procedure Code of the Kyrgyz Republic, the parties are obliged to pay a state fee at the very beginning when I file a claim. In this case, the outcome of the case does not affect the time of payment of the state fee. This requirement authorities cause the restriction of the parties from unreasonable risks, excessive demands and lack of necessary evidence.

Precedent:

Today, the situation is such that if you do not have money to pay the state duty (for example, 100,000 soms of state duty – from 1,000,000 soms to the defendant’s debt), you will not receive a statement of claim in court.

It happens in life so that the fault of the debtor of the plaintiff’s whole life went awry. Huge debts were formed, and no one would give debt without interest. The interest rates increase, the debt increases and it becomes unbearable and impossible to live like this. People are left without households, without housing, in order to at least partially repay the debt and the growing interest arising from the fault of the debtor (in this case, the state official-state organization). Agree, not everyone has this opportunity.

It would seem that the last hope is the court, which must restore justice. But the court refuses to accept the claim, demanding payment of state duty (previously the duty of the defendant, the debtor).

Where can I get money to pay the state duty to the plaintiff, who has already suffered from the state official of the Bishkek mayor’s office ?!

According to the law, if you do not file a claim for the defendant within three years, the statute of limitations will expire. And the plaintiff is left with his hands in his pants and away from the courthouse or loop.

What member of the parliament, elected by the people, proposed to introduce such a stupid and criminal law, which aims to ensure that fraudsters and corrupt officials are protected by the law as much as possible ?! How could the other 119 deputies support such a criminal law ?! Why did our people trust the deputies of the Zhogorku Kenesh to create the LAWS? Is it possible for them to suffocate us with their stupidly (possibly, intentionally) created LAWS? Everyone understands that such laws are created to protect their interests.

Why were these laws passed quietly, without publicity and knowledge of the public? This law fell on our heads like a snowball in the middle of summer. I would have known about this before, would have sold the last thing I have left in my life, or would have worked as a guest worker in order to earn a state duty for our native state.

***

07/10/2017 I filed a claim. I attached a petition to defer payment of state duty and a certificate from the bank that my organization currently has 0.01 som.

***

July 11, 2017, the statute of limitations for filing a claim (three years) expires. Naturally, in one day I could not find 123,800 soms to pay state duty. It turns out, everything was late.

Where do we seek justice? If, in our own home, in our own country, we are not protected by law from fraudsters and corrupt government officials, but there is no reason to talk about the impartiality of judges. What future awaits us, our grandchildren and great-grandchildren?

The editors of Kaktus.media have all copies of the documents filed with the court and the court ruling.

Source: Kaktus.media [1]

  • In order to establish adequate and expedient appeal periods, the terms for appealing judicial acts to the Supreme Court were reduced from 1 year to 6 months.
  • In order to enhance the role of the stage of preparation of a case for a trial, the institute of a preliminary court session is introduced into procedural legislation, in which participants in the process are obliged to submit their objections, petitions, and evidence in a timely manner prior to the appointment of the case for trial.

For what?

The institute of preliminary judicial settlement was introduced to strengthen the role of the stage of preparing a case for trial. The Civil Procedure Code provides that at a preliminary court hearing issues are considered regarding the recognition of the claim by the defendant, the application of limitation or the appeal of the court, in the manner prescribed by law. From the result of the preliminary court hearing, the court decides on the satisfaction of the claim for further court proceedings or on the refusal of the claim without investigation. This should simplify the trial.

  • To concretize and exclude a broad interpretation, the list of newly discovered circumstances was revised and the institute introduced new circumstances, which are decisions of international courts or international treaty bodies, as well as rulings of the Plenum of the Supreme Court of the Kyrgyz Republic on specific cases.
  • To expand the principles of competition, dispositiveness and equality of the parties, the roles and powers of the judge, parties, the prosecutor, and third parties in civil proceedings were revised, taking into account the need to maximize the involvement of the parties in the judicial process, strengthening procedural responsibility for violations of the requirements of the Code of Civil Procedure

It is planned to introduce the institution of mediation at all stages of the civil process.

  • The stage of preparation of a case for trial is included in the legal proceedings on economic cases and the list of grounds for the return of the claim is expanded, similarly to the general procedure for the consideration of civil cases.

In order to unify the process in economic and civil cases, the issue of restoring the time limit for filing a complaint is decided by the court to which the complaint is addressed.

  • In order to avoid unjustified delay in the consideration of cases, the consequences of withdrawing a complaint are envisaged, which prevent the second appeal.
  • In connection with the adoption in 2012 of a new version of the Children’s Code, according to which cases involving the adoption of children, the establishment of custody or guardianship over them, and their placement in boarding schools, are considered by the court, there are separate rules governing the procedure for dealing with cases of this category .
  • In order to comply with the persons involved in the case, the procedure during the court session introduces procedural responsibility (penalties) for repeated violations and ignoring the requirements of the court.
  • In connection with the reform of administrative proceedings and the development of the Administrative Procedure Code of the Code of Civil Procedure of the Kyrgyz Republic, rules governing the procedure for handling administrative cases have been excluded.

In addition, in order to eliminate gaps and contradictions (internal and external), some norms of the Civil Procedural Code of the Kyrgyz Republic are aligned with other laws.

The indicated directions of reforming judicial proceedings in civil cases will most effectively comply with the principles of judicial procedure fixed by procedural legislation and fully implement the function of protecting the rights and legitimate interests of citizens and legal entities, based on the principle of equality of all before the law, the right to fair and public trial.

Expert opinions:

Gulbara Kaliyeva

Head of the expert working group:

“The first instance will consider the case in the presence of one judge. The second and third instance are already three judges. The terms of appeal of the term of consideration in the Supreme Court were also changed from 2 months to three months. The first and second instance will consider cases within 1 month. Next, the Institute introduces a preliminary meeting. Today such practice exists, but it is called conversation. The new edition of this institution is legalized, “- she said.

G. Kaliyeva also said that it is important that 5 new chapters were added to the new edition.

“The first three will concern the adoption of a child, the establishment of custody and placement in an orphanage. All that concerns children, now only the court decides. The fourth amendment concerns the lost court proceedings. Spot – refers to the appeal of the actions of the bailiffs. An unscrupulous party often appeals against a bailiff. Thus, the process is in progress. And the goal is to delay court execution. It is also worth noting that the order of consideration of administrative cases will be transferred to the new Administrative Procedure Code. This chapter in the AIC concerns a complaint against the actions of state bodies and local self-government bodies. In that matter, the burden of proof lies with the state authorities. I would also like to note that the state duty is paid when filing a lawsuit, earlier it was based on the results of consideration. And if under the current code the state duty is not paid in the Supreme Court, then according to the innovations and in the highest instance payment is provided. And finally, I would like to emphasize that the party will be able to appeal only once. That is, if the party filed a complaint, then withdrew, then it would no longer be able to file a complaint again, ” – she added.

Larisa DOKUCHEVA,

Civil lawyer (specialist in civil matters), director of a law firm:

Judicial reform would be good to start with the enforcement of legislation. We have laws in which one article contradicts another article of the same law. Such conflicting articles are even in the Civil Code of Kyrgyzstan. And different courts in similar cases pass completely different decisions, since they use different articles. I appeal to the Jogorku Kenesh – the state body that adopts all these laws and codes. Please give an interpretation of how to apply these articles. The answer is shocking: “We do not interfere in the work of the courts, it is not within our competence.” It turns out a vicious circle. Lawmakers who have committed contradictions in the laws do not want to correct them, and their right and duty to interpret the laws are left to the judges. Who interpret them as it is convenient and profitable for them. My opinion: the imperfection of our laws and attracts judicial chaos. If each article of each law was interpreted clearly and unequivocally, if it could not be deployed either to the left or to the right, then there would be less corruption and judicial lawlessness.

 

Kairat Osmonaliev

Doctor of Law, Professor:

– Yes, as a result, we received codes … Few people would understand. And with these codes, law enforcers – that is, those who have to work on these codes – now do not know what to do. Legal proceedings complicated as soon as possible!

Here, for example, the current Criminal Code of Kyrgyzstan was adopted in 1997. Imagine – in 20 years more than 50 times changes were made to it! And they continue to make changes – mostly positive. How much time was spent on this, money, and finally nerves in a heated debate in parliament! Now we give up all this. Just because … donors paid for the new code.

Any state that considers itself mature and independent should, I believe, have conservative legislation. Which does not change at the whim of foreign donors. Criminal, Criminal Procedure, Civil Procedure and other codes is the legislative mechanism on which the state holds. They determine domestic policy and regulate the most important social relations. And suddenly we are told: “All this is outdated – forget it. Here you have everything new. ” Is there any guarantee that this new one will work well? I doubt it very much.

These codes, I believe, are condemned to eternal begging. Because you have to contact donors again and again. It will take, for example, to build new prisons – with the new regime. Where does the money for this come from?! Ё- In short, ”concludes Kairat Osmonaliev,“ judicial reform, like a sleeping beauty, is enveloped in a dream. And her peace is vigilantly guarded by young reformers — I call them “presidential balacas” (boys, boys).

Anatoly SAFONOV

practicing lawyer:

I talked to deputies who participated in the discussion of draft codes. They told that the head of the working group for the development of codes, the former deputy chairman of the Supreme Court, Gulbara Kaliyev, was invited to the meeting of the Jogorku Kenesh. She, in theory, should have explained each article of each code to the deputies, and the documents are voluminous. In order to have fewer questions and fewer complaints, all codes were submitted to the parliament in one package.

The Civil Procedure Code, unlike other codes, will begin to operate in the near future – from July 1, 2017. Even the scant information that we, the lawyers, managed to get even before its publication, leads, frankly, to horror.

We are talking about a state fee, which the plaintiff must pay, filing any material claim. It existed before, but in 2008 this standard was removed. Why? Firstly, because it restricted the rights of low-income citizens to judicial protection. Secondly, because of its corruption, judges could exempt from paying state fees, which they did … for bribes. And now they returned the state duty to the new CCP. What for? According to the developers, to reduce the flow of “unfounded” lawsuits. Thus, citizens struck hands – do not try to sue! In my opinion, the judges lobbied for the return of state duty. For the sake of one loophole – all the same exemption from the payment of state duty or its delay. Knowing the level of corruption of the courts, one can imagine what kickbacks will go to the judges from the plaintiffs …

– And how much will the plaintiff have to pay when filing a claim?

– Ten percent of the amount of the claim or the value of the subject of the dispute. The simplest example. Someone you have brushes aside an apartment worth, say, a hundred thousand dollars. You want to protect your property in court. In order for you to receive a claim in court, you must pay the state 10 thousand dollars. Suppose you lost the first court instance and you want to sue further, protecting not only the apartment, but also those 10 thousand dollars – after all, if the state duty is denied, the state duty remains with the state. To file a complaint with the Bishkek City Court, you will have to pay another 5 percent of the amount of the claim – another 5 thousand dollars. Lost and there – want to appeal this decision to the Supreme Court? Pay another 5 percent – another 5 thousand dollars. After losing all the courts, you end up losing not only the apartment, but also 20 thousand dollars. Which you have to pay – without any guarantee that you will win a lawsuit.

I am afraid that, starting in July 2017, we began to approach the social explosion. After all, a lot of people will suffer, who simply do not have the money to protect their rights in the courts. People will become defenseless before the raiders. And not only in front of them – because the state duty will have to pay for any claims of a material nature – whether it is compensation for damage to the car in an accident or even the recovery of alimony.

Changes made in the issues of restricting access to information recognized by the court as extremist and prohibited on the territory of the Kyrgyz Republic on the Internet:

dated July 25, 2017 N 141)

To make the following changes to the Civil Procedure Code of the Kyrgyz Republic (Vedomosti Zhogorku Kenesh of the Kyrgyz Republic, 2017, No. 1 (2), Article 14):

1) in Article 211:

a) to replace the words “the decision of the court” with the words “1. The court’s decision”;

b) to add the article with part 2 of the following content:

“2. From the moment of announcement, decisions come into force, issued by the courts on applications for recognition of extremist or terrorist information materials, which call for the implementation of such activities or justify or justify the need for its implementation. “;

2) subsection 3 shall be supplemented with chapter 25-1 to read as follows:

Chapter 25-1. Proceedings for extremist declarations or terrorist information materials that call to carry out such activities or justify the need for its implementation.

Article 261-1. Application submission

  • The prosecutor, within his competence, has the right to apply to the court for recognition of extremist or terrorist information materials that call for the implementation of such activities or justify or justify the need for its implementation, at the place of their discovery, distribution or location of the organization that carried out the production of such materials, subject to the rules of jurisdiction established by Chapter 4 of this Code.
  • At the request of the prosecutor, the court has the right to temporarily restrict access to information materials until a decision is rendered in the manner provided for in Chapter 14 of this Code.

Article 261-2. Consideration of the application

  • The application must be considered by the court within three days from the date of its receipt. In cases where the facts contained in the application require additional verification, decisions on them shall be made no later than within a five-day period.
  • The application is considered by the court with the participation of the prosecutor who filed the claims, and the persons indicated in the application, if their location is known. The failure to appear in court by the persons duly notified of the time and place of the court hearing in the application is not an obstacle to the consideration and resolution of the case.
  • If the location of the persons specified in the application is unknown, the court considers the application in their absence.

Article 261-3. Court decision on the application and its execution

  • The decision of the court, which entered into legal force, is sent to the executive authority in the field of justice for publication.
  • The court’s decision may be appealed in accordance with the procedure laid down in Chapter 40 of this Code. ”

This section was included in the previous edition of the Civil Procedure Code of the Kyrgyz Republic in 2016. Having become a real legal mechanism enshrined in the official source of civil procedural legislation of the Kyrgyz Republic, this chapter marked the beginning of a trial and research into evidence of limiting access to online content. The pre-trial blocking of content remained only as a measure to secure the claim, however, it was only temporary. Out-of-court access restriction ceased to exist, thereby raising the level of transparency of the work of judicial and law enforcement agencies, as well as the level of freedom of access to information on the Internet in the country.

However, with the introduction of the judicial procedure of restricting access to information, reefs appeared in this issue, which reduce the effectiveness of the regulatory impact of this norm. The low level of digital literacy of the organs of the court and investigation, as well as the lack of necessary practice in matters of correctness and effectiveness of court decisions The next steps are to create the potential of authorized state bodies to contact copyright holders, content providers (including such information giants as Youtube, Facebook) about deleting illegal content, recognized by the court as extremist, for users in the Kyrgyz Republic. And in the shortest possible time and on the basis of a judicial act. And also to create and assign to the Ministry of Justice a public list of illegal extremist resources blocked by the decisions of the courts. Unfortunately, the legality of blocking some resources raises a question. For example, among the blocked extremist sites were such useful and necessary resources for many as www.archive.org – an archive of web resources of the entire Internet, or www.wordpress.com– a platform for creating websites and blogs. Access to them was banned in the Kyrgyz Republic, although these are completely “peaceful” non-extremist resources. As we understand, blocking them was due to individual pages or blogs of extremist content hosted on these platforms.

The right to self-expression and access to information is one of the basic rights and is spelled out in Article 19 of the Universal Declaration of Human Rights. PF “CIIP considers the issues of citizens’ access to information on the Internet as an important guarantee for ensuring the digital rights of citizens”.

We have developed:

  • recommendations on the mechanisms of coordination and interdepartmental interaction of state bodies in times of emergency and crisis situations.
  • standards (Instruction) for the interaction of government agencies to inform the public during emergency and crisis situations.
  • proposals to the Government of the Kyrgyz Republic to improve the communication activities of ministries, to improve the work of press services, their training in communication skills, etc.
  • together with media experts, a document was developed on the interaction of press services with the media.
  • amendments to article 20 of the Law of the Kyrgyz Republic “On Access to Information, which are under the jurisdiction of state and municipal bodies” have been developed.

Lawyers of the organization systematically study the experience of foreign countries in this field (EU, CIS), review international practice in the field of cyber security and study model laws of the CIS countries (such as the Russian Federation, Estonia, Moldova, Kazakhstan, Georgia), documents and ISCED standards, including information security initiatives and ways to protect data.

First of all, those effective practices that are consistent with the principles of necessity and proportionality (proportionality), when measures to restrict access to illegal content are proportionate and strictly proportionate to the interests of society in development and security.

The approach to restricting illegal content based on these universal, recognized by the Internet community principles is the most harmonious and proportionate. The Internet is global and cross-border. And the efforts of countries in confronting online recruiting, Internet extremism should also be combined and coordinated on common principles and approaches: finding a balance between security and development. The regulation in the fight against extremism in the network should focus on the legal relations of the parties in the Internet space, and not on technical restrictions in access, which distracts from the causes of the problem, and focuses only on its consequences.

[1]

https://kaktus.media/doc/360686_call_centr:_novyy_gpk_oplati_gosposhliny_togda_primyt_isk_v_syd.html

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