Commentary on Article 51. Court of the Criminal Procedure Code of the Republic of Kazakhstan
1. The court, being an organ of judicial power, administers justice in criminal cases.
2. Any criminal case may be heard only by a lawful, independent, competent and impartial composition of the court, which is ensured through compliance with the rules established by this Code concerning:
1) determination of the jurisdiction of specific cases;
2) formation of the composition of the court for the consideration of specific criminal cases;
3) recusal of judges;
4) separation of the function of adjudicating a case from the functions of prosecution and defence.
3. Justice in criminal cases in the Republic of Kazakhstan is administered by: the Supreme Court of the Republic of Kazakhstan; regional and equivalent courts, the Military Court; district and equivalent courts; specialized interdistrict criminal courts, specialized investigative courts, specialized interdistrict investigative courts, specialized interdistrict military criminal courts, specialized interdistrict courts for juvenile cases, and military courts of garrisons.
Note. Article 51 was amended by Law of the Republic of Kazakhstan dated July 12, 2018, No. 180-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
In Regulatory Resolution No. 1 of the Supreme Court dated May 14, 1998, “On Certain Issues Concerning the Application of Legislation on Judicial Power in the Republic of Kazakhstan,” the courts are reminded of the need, in their administration of justice, to take into account the constitutional provision that judicial power in the Republic is an independent branch of state power in relation to the other branches of state power of the Republic: legislative and executive, with the use of a system of checks and balances (paragraph 1).
The assignment of the state function of administering justice in criminal cases specifically to courts is обусловлено by their special role and purpose in society and the state. In other words, a court acting in accordance with law, a lawful court — this is how the mission of judicial bodies in a state governed by the rule of law may be characterized. Such a position of the court in society is determined not only by the fact that the court is a branch of state power, but also by its legal capacity within the constitutional and legal framework of the state. Everyone has the right to judicial protection of their rights and freedoms (paragraph 2 of Article 13 of the Constitution); everyone is equal before the law and the court (paragraph 1 of Article 14 of the Constitution); arrest and detention in custody are permitted only in cases provided for by law and only with the authorization of a court, with the arrested person being granted the right to appeal (paragraph 2 of Article 16 of the Constitution); no one may be deprived of their property except by a court decision (paragraph 3 of Article 26 of the Constitution). A special Section 7 of the Constitution is devoted to courts and justice, and is entitled “Courts and Justice.” All of the foregoing thus emphasizes the most important constitutional position that the court is, first and foremost, the principal instrument through which the Republic establishes itself as a state governed by the rule of law (“a state of legality,” “a state of judges”) (paragraph 1 of Article 1 of the Constitution).
3. The fulfilment of the purpose of judicial power in criminal cases becomes possible under conditions of comprehensive regulation of the legal status of the court in criminal proceedings. In addition to the status of judges provided for by the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan,” the CPC determines jurisdiction, that is, the range of criminal cases that may be considered on the merits at first instance with the delivery of a judgment or court ruling (Articles 306—309 of the CPC), as well as cases considered on appeal (Articles 310—311 of the CPC). At the same time, the Supreme Court acts exclusively as the highest judicial instance, with the right to review judicial decisions exclusively at the level of the Judicial Collegium for Criminal Cases in cassation proceedings (Article 313 of the CPC).
4. The composition of the court for the consideration of specific criminal cases depends on the stage at which the criminal case is being considered within the judicial instances, the category of the criminal offence committed, the punishment prescribed for it, and the subject of the act (Article 52 of the CPC).
As a general rule, criminal cases in courts of first instance are heard by a single judge. Similarly, a judge of the appellate instance sitting alone considers appeals and prosecutors' motions against judgments and court rulings in cases heard under the simplified procedure or by way of summary proceedings, in cases involving criminal misdemeanours and minor offences, on matters concerning the execution of a judgment, and in respect of rulings of an investigating judge.
The review and reconsideration of a judicial decision of a court of first instance by a higher court in appellate or cassation proceedings are, subject to exceptions, carried out collegially (by a panel consisting of at least three judges), since this is necessitated by the need to maintain a high level of legality when reviewing the principal, original judicial decision in a case, as well as by ethical considerations.
Cases involving crimes for which the criminal law provides for the death penalty or life imprisonment constitute a special category of criminal cases, since the life and fate of a person and citizen depend on the final judicial decision in such cases. Such cases and certain other categories of criminal cases (subject to exceptions), where the accused submits a motion to that effect, are considered collegially (by a panel consisting of one judge and ten jurors) at the level of a specialized interdistrict criminal court and a specialized interdistrict military criminal court (by more experienced judges).
The CPC also distinguishes the consideration at first instance, by a single judge of a specialized interdistrict court for juvenile cases and a military court of a garrison, of cases concerning, respectively, crimes committed by minors and military criminal offences, as well as the consideration by judges of specialized courts of other categories of cases, including, upon the motion of the accused, by a panel consisting of one judge and ten jurors — by a specialized interdistrict criminal court and a specialized interdistrict military criminal court. The CPC also classifies specialized investigative courts and specialized interdistrict investigative courts as courts of first instance (paragraph 9 of Article 7, Part 3 of Article 51, Articles 306, 308—309 of the CPC).
A comprehensive, complete and objective examination of the circumstances of a criminal case is possible only where the participants in criminal proceedings strictly adhere to the roles assigned to them by the provisions of the CPC. The court is not a party to the proceedings, may not, in the absence of grounds for doing so, grant certain motions of a party, and acts exclusively independently, being subject only to the Constitution and the law (Article 23 of the CPC). The administration of independent justice is protected by the provisions of criminal legislation (Articles 407—411 of the Criminal Code) and the rules governing the recusal of judges. A judge may not participate in the consideration of a case if circumstances exist that provide grounds for believing that the judge has a personal, direct or indirect interest in that case (Part 1 of Article 87 of the CPC).
The list of courts that administer justice is established by the Constitution and the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan” and is exhaustive. The establishment of special and extraordinary courts under any name is not permitted (paragraph 4 of Article 75 of the Constitution; see the commentary on the provisions of Articles 10, 11, 12, 19, 20, 21, 22, 23, 24, 25, 29, 30 and 31 of the CPC).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Cases Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses
