Comment to article 495. The grounds for the mandatory participation of the defender in the court of the supervisory instance The Criminal Procedure Code of the Republic of Kazakhstan
The participation of a defender in a court hearing of a supervisory instance is mandatory in the cases provided for in the first part of Article 67 of this Code.
In such cases, issues related to the invitation, appointment, replacement of a defender, and payment for his work are resolved in accordance with the procedure established by Article 68 of this Code.
The participation of a defense attorney in a criminal case is mandatory if:
1) this is requested by the suspect, the accused, the defendant, the convicted, the acquitted;
2) the suspect, the accused, the defendant, the convicted, the acquitted has not reached the age of majority;
3) a suspect, accused, defendant, convicted, acquitted due to physical or mental disabilities cannot independently exercise his right to defense;
4) the suspect, the accused, the defendant, the convicted, the acquitted does not speak the language in which the proceedings are conducted;
5) a person is suspected or accused of committing a crime for which imprisonment for a term of more than ten years, life imprisonment or the death penalty may be imposed as a punishment.;
6) the suspect, accused, defendant, convicted person has been detained as a preventive measure or has been forcibly sent for inpatient forensic psychiatric examination.;
7) there are contradictions between the interests of suspects, accused, defendants, convicted, acquitted, one of whom has a lawyer.;
8) a representative of the victim (private prosecutor) or the civil plaintiff participates in the criminal proceedings.;
9) when considering a case in court, the prosecutor who supports the state prosecution (the state prosecutor) participates.;
10) the suspect, the accused, the defendant, the convicted, the acquitted is outside the borders of the Republic of Kazakhstan and evades appearance in bodies of criminal prosecution or court;
11) a petition has been filed for a procedural agreement and its conclusion.
A lawyer as a defender is invited by the accused, convicted, acquitted, their legal representatives, on behalf of or with the consent of the suspect, accused, defendant, convicted, acquitted. A suspect who has the right to defense, an accused, a defendant, a convicted person, or an acquitted person has the right to invite several lawyers to defend themselves.
At the request of the suspect, the accused, the defendant, the convicted, the acquitted, the participation of the defender is provided by the body conducting the criminal process.
In cases where the participation of an elected or appointed defense attorney is impossible for a long period (at least five days), the body conducting the criminal process has the right to propose to the suspect, defendant, convicted, acquitted person to invite another defense attorney or to take measures to appoint a defense attorney through a professional organization of lawyers or its structural divisions. The body conducting the criminal process does not have the right to recommend inviting a certain person as a defender.
The commented norm lists the circumstances in which the participation of the defender in the consideration of the case in the supervisory board is mandatory.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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