Comment to article 373. Examination in court proceedings The Criminal Procedure Code of the Republic of Kazakhstan
At the request of the parties or on its own initiative, the court has the right to appoint an expert examination.
The expert examination is conducted by the expert(s) who gave an opinion during the pre-trial investigation, or another expert(s) appointed by the court.
In the latter case, the presiding judge must inform who is supposed to be entrusted with the examination, after which, in the absence of petitions for the recusal and self-recusal of the said person, the court decides to involve him as an expert in the case without removing the court to the conference room. Further, the expert is explained his procedural powers, he is warned about criminal liability for knowingly giving a false conclusion, which he subscribes to.
The examination in court is carried out according to the rules set out in Chapter 35 of this Code, taking into account the requirements of this Article.
At a court hearing, the expert, with the permission of the presiding judge, has the right to participate in the investigation of circumstances related to the subject of the examination: to ask questions to the interrogated persons, to get acquainted with the materials of the criminal case, to participate in all judicial actions related to the subject of the examination.
After clarifying all the circumstances relevant to the case, the chairman invites the parties to submit written questions to the expert. The questions raised should be announced and the opinions of the participants in the trial should be heard on them.
The parties have the right to submit objects and documents as objects of expert research. Excluding them from the list of such persons, the court is obliged to issue a reasoned decision.
Having considered the issues and having heard the opinions of the parties on them, the court, by its decision, eliminates those of them that do not relate to the case or the competence of the expert, formulates new questions.
The person appointed as an expert shall be given a copy of the court's decision on the appointment of an expert examination and his rights and obligations provided for in Article 79 of this Code shall be explained. The court, having listened to the opinions of the parties, has the right to postpone the court session for the time necessary for conducting the study.
The expert shall give a written opinion and announce it at a court hearing, after which he may be questioned according to the rules provided for in Article 374 of this Code. The expert's opinion is attached to the case.
After conducting an expert examination in court proceedings, in the cases provided for in Article 287 of this Code, the court has the right to appoint an additional or repeated expert examination.
If an expert who gave an opinion during the pre-trial proceedings is called to court, the court, after the announcement of the conclusion, if it does not raise objections from the parties, has the right not to appoint an expert examination and limit itself to questioning the expert.
1. An expert examination may be conducted both at a preliminary hearing and at any time during the judicial investigation, but before its completion. In cases of private prosecution, the decision to appoint an expert examination may be taken at the initiation of a criminal case, as well as at the stage of judicial proceedings.
For the examination, the parties are invited to submit questions in writing. All participants in the process participate in the discussion of the issues presented. When discussing issues, an expert participating in the court session may point out those that do not relate to his competence, or raise the issue of exclusion due to the inaccuracy of the wording. After that, the court considers the submitted issues, excludes those that are not relevant to the case or the expert's competence, and includes, at its discretion, other issues on which an expert opinion is required. The court's decision is clothed in a resolution, which specifies the questions to be answered by the expert during the examination, as well as the rejected questions with the reasons for the rejection.
Even if an expert examination was conducted during the pre-trial proceedings, the examination conducted in court is primary and fundamental. And if, as a result of the initial examination, some issues remain unresolved, the court has the right to appoint an additional or repeated examination.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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