Commentary on Article 81. Interpreter of the Criminal Procedure Code of the Republic of Kazakhstan

1. A person who is not interested in the case, possesses the language skills necessary for translation, and is engaged to participate in investigative and judicial actions shall be summoned as an interpreter in cases where the suspect, accused, defendant, their defense counsel, or the victim, civil claimant, civil defendant or their representatives, as well as witnesses and other participants in the proceedings, do not speak the language in which the proceedings are conducted, as well as for the translation of written documents.

2. The authority conducting the criminal proceedings shall issue a ruling appointing a person as an interpreter.

3. The interpreter shall have the right to:

1) ask questions to persons present during the translation in order to clarify the translation;

2) examine the record of the investigative or other procedural action in which they participated, as well as the relevant part of the court hearing record, and make comments regarding the completeness and accuracy of the translation, which shall be entered into the record;

3) refuse to participate in the proceedings if they do not possess the knowledge necessary for translation;

4) lodge complaints against the actions of the authority conducting the criminal proceedings;

5) receive reimbursement of expenses incurred in connection with participation in investigative and other procedural actions, and remuneration for the work performed, provided that participation in the proceedings is not part of their official duties;

6) submit a motion for the adoption of security measures.

4. The interpreter shall be obliged to:

1) appear when summoned by the authority conducting the criminal proceedings;

2) perform the translation entrusted to them accurately and completely;

3) certify the accuracy of the translation by their signature in the record of the investigative action conducted with their participation, as well as in procedural documents provided to participants in the proceedings in translation into their native language or a language they speak;

4) not disclose information concerning the circumstances of the case or other information that became known to them in connection with their engagement as an interpreter;

5) maintain order during investigative actions and court hearings.

5. For refusing or evading appearance or the performance of their duties without valid reasons, a monetary penalty may be imposed on the interpreter in accordance with the procedure provided for in Article 160 of this Code. In the event of knowingly incorrect translation, the interpreter shall incur criminal liability.

6. The provisions of this Article shall also apply to a person who understands the signs used by mute or deaf persons and is invited to participate in the proceedings.

The language of judicial proceedings is one of the most important constitutional and criminal procedural principles (see the commentary on the provisions of Article 30 of the CPC). The importance of observing the principle of the language of judicial proceedings is evident from the fact that the CPC classifies its violation as a substantial breach of the norms of criminal procedural law. A judgment, as stated in subparagraph 5) of part 3 of Article 436 of the CPC, shall in all cases be subject to reversal if the defendant's right in court to use their native language or a language they speak, or the services of an interpreter, has been violated.

An interpreter is also a specialist, but one who specializes in translation from one language into another, the knowledge of which is necessary, firstly, for the full translation of explanations and testimony given by participants in the proceedings, as well as questions and comments concerning the case made by officials of the authorities conducting the criminal proceedings, and secondly, for the translation of written documents submitted by the parties and by the authority conducting the criminal proceedings during the proceedings (Part 1 of Article 81 of the CPC). Unlike a specialist, whose assistance to the authorities conducting the criminal proceedings is episodic in nature, an interpreter, provided there are no grounds for their disqualification (Article 92 of the CPC), participates throughout the entire proceedings from the moment they commence.

As a participant in criminal proceedings, the interpreter possesses a comprehensive set of rights, restrictions and obligations, compliance with which enables them to effectively perform their function in the criminal case (Parts 3–5 of Article 81 of the CPC).

The principal condition for an interpreter's competence, within the meaning of the provision of subparagraph 2) of Part 4 of Article 81 of the CPC, is the accurate (verbatim) and complete (comprehensive) performance of the translation entrusted to them. Otherwise, the incompetence thereby established constitutes an independent ground for their removal from participation in the case by the authority conducting the criminal proceedings (subparagraph 2) of Part 1 of Article 92 of the CPC).

The activities of an interpreter are protected by criminal law through the establishment of criminal liability for bribing or coercing an interpreter into providing an incorrect translation (Article 422 of the Criminal Code).

As a measure of criminal procedural liability applicable to an interpreter, the law provides for the possibility of imposing a monetary penalty on them by the investigating judge or the judge hearing the case if they refuse or evade appearing or performing their duties without valid reasons. The procedure for imposing a monetary penalty is established by Articles 159 and 160 of the CPC.

An interpreter may be held criminally liable for knowingly providing an incorrect translation (Article 420 of the Criminal Code) and for disclosing information concerning pre-trial proceedings (Article 423 of the Criminal Code) as a result of improper performance of their duties.

The knowingly incorrect nature of a translation, established by a court judgment that has entered into legal force, constitutes an independent ground for reopening proceedings in a case on the basis of newly discovered circumstances (subparagraph 1) of Part 2 of Article 499 of the CPC).

Interpreters summoned to the authorities conducting the criminal proceedings to participate in investigative actions and court proceedings have the right to receive remuneration for the work performed in the criminal case and reimbursement of expenses incurred by them in criminal proceedings (see the commentary on the provisions of Part 4 of Article 71, Articles 175–176 and 177–178 of the CPC; Resolution of the Government of the Republic of Kazakhstan dated October 9, 2014, “On Certain Issues of Reimbursement of Expenses Incurred by Persons in the Course of Criminal Proceedings”, paragraphs 1, 3–4, 6; paragraphs 16–17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”).

Commentary of 2020 on 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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