FILLING THE GAPS IN THE CURRENT LAW WITH NORMATIVE RULINGS OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
For the first time in Kazakhstan’s constitutional development, the scope of current law was outlined. According to paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, this includes the norms of the Constitution, corresponding laws, other normative legal acts, international treaties, and other agreements of the Republic, as well as the regulatory resolutions of the Constitutional Council and the Supreme Court of the Republic. According to this provision, the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan constitute a source of current law and can establish new norms not found in other legal sources.
Law-making entities create new normative legal acts to supplement, amend, and repeal older ones to improve legislation. However, they cannot fully encompass the diversity of social relationships, their countless forms of expression, and cases requiring legal regulation. Legislative gaps exist because lawmakers failed to foresee or regulate all relationships needing legal oversight when enacting a law, or because new relationships emerged that require inclusion in the sphere of legal regulation. There are no gaps in law when certain public relations do not require legal regulation at all. Similarly, there are no gaps when legal issues governed by general norms can be clarified and detailed for resolution.
The main method of overcoming gaps that ensures the dynamism of law is its application by analogy. The institute of analogy is a specific method of applying law aimed at resolving concrete life situations in accordance with the legislator’s will, while ensuring legality and stability of the law by accounting for new facts within the scope of legal regulation. According to paragraph 5 of Article 6 of the Civil Procedural Code (CPC): 'If there are no legal norms regulating a disputed relationship, the court shall apply norms regulating similar relationships, and in the absence of such norms, it shall resolve the issue based on the general principles and spirit of legislation.' This provision comprises two legal norms. The factual composition of the hypothesis of the first norm is the absence of a law regulating the disputed relationship when there is a law regulating a similar relationship. In the second case, there are no norms regulating relationships similar to the disputed ones. The phrase highlighted ('and in the absence of such norms') implies a priority for the application of the first legal norm and serves as a condition for implementing the second, relating to its hypothesis.
When applying an analogy, the court faces numerous questions. For instance, what constitutes a 'similar public relationship'? What degree of similarity is required between a legislatively regulated and an unregulated public relationship?
To address the question of applying legal analogy, the court must thoroughly study the case under review and the legislation governing the matter in question. It must then either find a norm under which the case can be resolved or unequivocally confirm the absence of the necessary legal norm. If the court concludes that applying an analogy is possible—either for the law as a whole or for a particular norm—it does not create a new legal norm. As noted by M.A. Gurvich, the analogy of law does not involve filling a gap in legislation but instead incorporates the disputed relationship, which lacks direct regulation, into the hypothesis of a norm regulating a similar relationship and subjects it to that norm.
S.N. Bratus and A.B. Vengerov took a different stance, arguing that a legislative gap is not filled by subsuming a situation unregulated by legal norms under a similar norm but by the court creating a new norm by analogy, on which the decision is then based.
Judicial practice is fraught with challenges and errors even when clarifying applied norms. These difficulties are compounded by the absence of required legal norms when resolving cases. Under such conditions, the role of regulatory resolutions issued by the Supreme Court becomes crucial in forming a unified position for courts handling cases with similar sets of legal facts.
M.A. Gurvich noted that when laws or analogies are applied incorrectly, the Plenum of the USSR Supreme Court must provide general clarifications regarding proper application in such cases.
From this, it follows that when judicial practice reveals gaps in legislation, the Supreme Court, as the highest judicial authority overseeing the legality of judicial administration, and as an institution responsible for clarifying judicial practice, must not only issue but is obliged to issue regulatory resolutions to address such gaps.
The norms of the Civil Procedural Code explicitly allow for the use of legal and normative analogies. However, what happens when such analogies are not explicitly provided for by law? Soviet-era scholars argued that the prohibition of analogy in criminal law also implied its prohibition in criminal procedure. The main argument supporting this position was that whenever the legislator permits the use of analogy, it is explicitly stated in the law. As is well known, no such provision exists in the Criminal Procedure Code, and this remains true today.
S.N. Bratus presented a compelling counterargument, stating that the absence of explicit legislative permission for analogy cannot be taken as evidence of its prohibition. Indeed, if the legislator intended to prohibit analogy, this intention should have been clearly articulated in the law. Modern legislators have followed this principle, explicitly forbidding analogy in criminal law (paragraph 10, part 3, Article 77 of the Constitution of the Republic of Kazakhstan and Article 3 of the Criminal Code of the Republic of Kazakhstan).
In the practice of the Supreme Court of the Republic of Kazakhstan, cases involving the use of analogy in criminal procedural law when issuing regulatory resolutions have been observed. For instance, paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003, titled “On Judicial Appeals of Prosecutorial Sanctions for Arrest, House Arrest, or Extensions Thereof” provides a clarification that essentially constitutes a new norm: “The judge, upon receiving an appeal regarding a prosecutorial sanction for arrest, house arrest, or an extension thereof, shall issue a resolution to prepare a court session.” However, neither Article 109 nor Article 110 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC) outlines the obligation to issue such a resolution or its requirements, even though the procedural significance of such a judicial act is apparent. In this case, there is a clear legislative gap. It appears that the Supreme Court used analogy, applying paragraphs 1 and 2 of Article 299 of the CPC, which establish that when a criminal case is submitted to the court, the court chairperson or another judge by their authorization must decide whether to accept the case for proceedings, and this decision must be made in the form of a resolution.
Another vivid example is the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 19, 2001, titled “On Judicial Practice in Considering Applications for Enforcing Arbitral Awards.” In this resolution, it is explicitly stated: “The enforcement of arbitral awards is permitted by analogy with Article 425 of the Civil Procedural Code.”
These provisions in regulatory resolutions are not recognized as legal norms by many scholars. For instance, G.Zh. Suleimenova characterizes them merely as explanations aimed at implementing legal norms through analogy. While it can be agreed that such a resolution initially serves a clarifying function, the term “explanation” cannot be equated with “interpretation.” Interpretation involves establishing the meaning of an existing norm. How can a mere interpretation extend a legal norm to cases it does not explicitly cover? Every application of law requires interpretation, but if norms were interpreted so freely, law enforcement would devolve into arbitrariness. In these cases, the Supreme Court does not interpret a norm but evaluates whether a specific case is analogous to those covered by an existing norm.
In turn, analogy as a method is permissible within the framework of interpretation. This applies to instances where the legislator provides only an approximate or incomplete list of circumstances or features, using phrases like “and others” or “and in similar cases.” By including such phrases, the legislator authorizes the interpreter to expand the relevant list of circumstances to include those analogous to the ones explicitly listed in the legal norm, essentially allowing for broad interpretation.
A norm always exists independently of its interpretation or the interpreter. However, before the issuance of a regulatory resolution by the Supreme Court that employs legal analogy, no corresponding universally binding rule of conduct exists. A.F. Cherdantsev asserts that “such clarifications undoubtedly contain elements of delegated law-making, both factually (establishing a general rule absent from the legal system) and normatively (the law grants courts the right to address gaps in legislation by issuing normative clarifications for specific situations).”Opponents of recognizing such provisions as new legal norms, such as A.T. Bonner, argue that “applying analogy, including in guiding clarifications by the Supreme Court Plenum, merely extends the scope of existing norms but does not create new ones.” Yet, numerous similar public relationships are regulated by different legislative norms. In such cases, scholars do not typically claim that one norm merely extends the scope of another, even though, in the absence of one norm, another regulating similar relationships could be applied by analogy.
A.T. Bonner's assertion overlooks the fundamental principle that only the legislator is entitled to amend or supplement existing norms. By issuing regulatory resolutions based on legal analogy, the Supreme Court neither amends nor supplements any legislative norm; instead, it creates a new norm to fill a regulatory gap in areas under the Parliament’s jurisdiction. The Supreme Court’s law-making assumes a fundamentally different nature. While Parliament, as the legislative branch, regulates the most critical public relationships through laws and other normative legal acts, the Supreme Court’s law-making is incidental, arising from its function of ensuring legality and uniformity in judicial practice.
A.T. Bonner provides another argument supporting his position, asserting that “the Supreme Court's directives regarding the necessity of applying analogy create a mandatory, case-specific method for overcoming gaps in the law.” However, in such cases, the gap is not merely addressed but fully eliminated.
V.V. Lazarev aptly described the essence of addressing gaps in the law: “In the process of applying the law, courts merely overcome gaps, much like a traveler overcomes an obstacle encountered on their path without being able to remove it. The gap continues to exist, even if a court decision is rendered.” However, when the Supreme Court issues a regulatory resolution addressing such a gap, the gap is entirely and unequivocally eliminated. No further effort or means are required to address it. It is sufficient to apply the corresponding regulatory resolution and cite it in the court’s decision.
In support of this view, several arguments can be made. First, the likelihood of a case being dismissed due to the absence of an applicable legal norm is almost entirely eliminated. Second, there is no longer a need to search for norms regulating similar relationships. Third, the subjective factor in applying analogy is significantly reduced. Fourth, the explanatory nature of regulatory resolutions allows them to provide more detailed regulation than legislative norms for resolving cases.
Gaps in the law can only be filled through law-making. Only a new legal norm can eliminate a gap, and, as demonstrated earlier, a gap can be considered fully addressed by a corresponding legal norm issued by the Supreme Court.
Recognizing the Supreme Court’s authority for such law-making does not infringe on the principle of separation of powers, as the legislator’s will is always considered through the intellectual projection of legal norms onto cases not explicitly provided for. When establishing new norms, the Supreme Court operates within the framework of the legal field defined by the legislator. Meanwhile, Parliament is not bound by norms established by the Supreme Court and can freely resolve issues differently, even if a regulatory resolution has previously addressed the gap.
The adoption of a regulatory resolution by the Supreme Court that fills a legal gap not only ensures the correspondence of court decisions to current law—which includes such acts—but also enhances their stability during appellate and supervisory review.
Certain criteria must be met for the admissibility of analogy in law enforcement. For example, in the sphere of criminal procedure, such criteria include the following:
1.The mandatory absence of a procedural norm regulating the specific case. 2.Consistency and compliance of the rule derived by analogy with the fundamental principles of criminal procedure. 3.Adherence to the principles of criminal procedure. 4.Full observance of the procedural rights of participants without additional restrictions. 5.The inapplicability of analogy to exceptional cases outside the ordinary scope of procedural law. 6.The inadmissibility of analogy where the boundaries of legal norms are clearly defined. 7.The impossibility of filling gaps through interpretation. 8.The permissibility of analogy only for cases that do not predefine the resolution of the criminal case on its merits, distinguishing minor gaps addressed through analogy from major law-making efforts where analogy is impermissible. 9.Convincing justification for applying analogy. 10.Validation of the analogy's appropriateness by supervisory bodies and higher courts.These criteria, with appropriate adjustments, are fully applicable to the Supreme Court’s issuance of regulatory resolutions utilizing analogy not only in criminal procedure but also in other branches of law.
The issue becomes more complex when the Supreme Court uses legal analogy to fill legislative gaps through its regulatory resolutions. In such cases, the primary criterion for admissibility is the impossibility of using legal analogy due to the absence of norms regulating similar relationships. This involves deriving a new norm to fill the gap based on a systematic analysis of legal norms and principles.
It is worth noting that the Supreme Court’s law-making is not limited to filling gaps through analogy. Regulatory resolutions may also specify existing legal norms. For example, as noted by K.A. Mami, “The inclusion of provisions on moral harm compensation in the Civil Code of the Republic of Kazakhstan led to diverse interpretations and applications of corresponding norms. This prompted the Supreme Court to issue a special resolution on this matter, where it formulated the concept of ‘moral harm’ and clarified its content (regulatory resolution of the Supreme Court dated June 21, 2001, No. 3).'
From the above, several features of the Supreme Court’s law-making can be identified:
1.It is supplementary, as the Supreme Court establishes new norms to complement the existing legal system, addressing gaps in normative legal acts. 2.It serves as “preliminary gap-filling,” as described by V.V. Lazarev, with the responsibility for filling gaps primarily resting on the body whose acts contain them. 3.It is incidental, arising from the Supreme Court’s function of ensuring legality and uniformity in judicial practice rather than being aimed at regulating specific societal relationships. 4.It is subordinate, conducted strictly within the framework of existing legislation. Among the methods for modifying legal regulation, the Supreme Court can only establish new norms for unresolved issues in legislation. It cannot repeal, terminate, or replace legislative norms.Thus, the Supreme Court’s law-making is driven by the existence of legal gaps, the need to clarify norms, the negative impact of these issues on judicial practice, and the possibility of addressing them through norms that do not conflict with existing legislation. Analogy in regulatory resolutions is a form of law-making designed to regulate previously unaddressed relationships while ensuring uniformity