Comment to the article Article 365. Clarifying the defendant's position The Criminal Procedure Code of the Republic of Kazakhstan

The presiding judge shall question the defendant whether he understands the charge, explain to him the essence of the charge and find out whether he wishes to inform the court of his attitude to the charge in the cases provided for by this Code, find out whether he wishes to conclude a procedural agreement with the prosecutor or an agreement to achieve reconciliation with the victim through mediation.

It should be explained to the defendant that he is not bound by a confession or denial of guilt made during the pre-trial proceedings, is not obliged to answer the question of whether he admits his guilt or not, and that the defendant's refusal to answer cannot be interpreted to his detriment. It is also explained to the defendant that his admission of guilt and sincere repentance are circumstances mitigating his responsibility and punishment. The defendant has the right to motivate his answer. The defendant's silence is interpreted as his non-admission of guilt.

The presiding judge asks the defendant whether he recognizes (in full or in part) the civil claim brought against him. If the defendant gives an answer to this question, he has the right to motivate him. The defendant's silence is interpreted as his non-recognition of the civil claim.

The parties have the right to ask the defendant questions aimed at clarifying his position, including on the issue of concluding a procedural agreement with the prosecutor.

After the prosecutor presents the charges and other documents, the presiding judge interviews each defendant to see if he understands the charge, whether his factual side and legal qualifications are clear. If the defendant claims that he does not understand the charge, the presiding judge explains to him what crime he is accused of, what criminal law has been applied, and what the charge is based on, according to the indictment. The defendant has the right to refrain from expressing his attitude to the charge without explaining the reasons.

If the defendant pleads partially guilty, the presiding judge must clarify which part of the charge the defendant pleads guilty to and which part is not.

If the defendant wishes to motivate his answer, he should be given such an opportunity. The motivation of the defendant's response should not turn into testimony about the charges. Clarifying questions from the presiding judge should not turn into an interrogation of the defendant on the merits of the charge. The silence of the defendant cannot be regarded as an admission of guilt or as a violation of the court session schedule and entail any negative consequences.

Similarly, the defendant is asked whether he recognizes (in whole or in part) the civil claim brought against him. The response may be motivated, and silence is regarded as not recognizing a civil claim.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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