Commentary on Article 86. Objections and Motions for Removal from Participation and Release from Participation in Criminal Proceedings under the Criminal Procedure Code of the Republic of Kazakhstan
1. Where circumstances exist that preclude their participation in criminal proceedings, a judge, prosecutor, investigator, inquiry officer, defence counsel, representative of the victim (private prosecutor), civil claimant, civil defendant, attesting witness, court hearing secretary, court bailiff, interpreter, expert, or specialist shall be obliged to withdraw from participation in the criminal proceedings, or a challenge shall be lodged against them by participants in the criminal proceedings.
2. The body conducting the criminal proceedings shall be entitled, within the limits of its competence, to resolve challenges and motions for removal from proceedings in the case, or, upon discovering circumstances that preclude a person's participation in criminal proceedings, to remove that person from participation on its own initiative by issuing an appropriate ruling. If, simultaneously with a challenge against a person authorised to resolve challenges concerning other participants in the proceedings, challenges are also lodged against other participants in the proceedings, the issue of challenging that person shall be resolved first.
3. Where the simultaneous participation of several persons in criminal proceedings is precluded by reason of their family relationships or other relationships of personal dependence, the persons who acquired the status of participants in the proceedings later than the others shall be removed from the criminal proceedings. If persons connected by family relationships or other relationships of personal dependence are members of the court, the person to be removed from participation in the criminal proceedings shall be selected by the presiding judge.
4. The secretary of the court hearing, court bailiff, interpreter, specialist, or expert whose participation in criminal proceedings is not precluded by any of the circumstances stipulated by this Code may, at their request, be released from such participation by the body conducting the criminal proceedings on account of valid reasons preventing them from performing their procedural functions.
The proper resolution of a criminal case depends, to a decisive extent, on the participation in the proceedings of appropriate subjects of criminal procedural activity, that is, participants in the criminal proceedings representing both the prosecution and the defence, who are legally entitled to act in such capacity. This provision also applies to a judge, but does not apply to the persons of the suspect, accused, defendant, or victim of a criminal offence. Thus, the matter concerns the institution of challenge (a statement requesting removal) of the body conducting the criminal proceedings or a participant in the criminal proceedings from the proceedings in a case where grounds for doing so exist.
The provisions of Parts 1 and 2 of Article 86 of the CPC distinguish between what are known as self-withdrawals by participants in criminal proceedings; challenges that may be lodged by participants in the proceedings against one another; and, finally, challenges initiated by the body conducting the criminal proceedings. A challenge shall be submitted in the form of an application, and the issue of the challenge shall be resolved by the body conducting the criminal proceedings through the issuance of a reasoned ruling.
An unconditional rule governing challenges is the procedure according to which, where challenges are simultaneously lodged in a case against participants in criminal proceedings listed in Part 1 of Article 86 of the CPC, including the inquiry officer, investigator, prosecutor, and judge, the issue of challenging the official conducting the proceedings in the case must be resolved first. The reverse order violates the requirements of legality and defeats the purpose of this procedure (Part 2 of Article 86 of the CPC).
The law bases the institution of challenge on the existence of family relationships or other relationships of personal dependence between participants in criminal proceedings, subject, however, to the condition that, when deciding whether to remove a particular participant in the criminal proceedings from the case, the time at which that person became involved in the case must be taken into account: the later that occurred, the more obvious that person becomes as a candidate for removal from the case. Where the composition of the panel of judges is concerned, however, in the presence of the above-mentioned relationships of personal dependence, the final decision rests with the presiding judge in the case, who removes from the case the judge whose relationship with the defendants in the case is deep-rooted and enduring and, consequently, may affect the lawfulness of the judgment.
While Parts 1–3 of Article 86 of the CPC regulate general approaches to resolving applications for challenges against particular participants in criminal proceedings on serious grounds provided for by law, the same cannot be said of cases involving motions for release from participation in a criminal case for valid reasons that make it impossible for the secretary of the court hearing, court bailiff, interpreter, specialist, or expert to participate in the case. Although they have the full right to perform the relevant procedural functions in a criminal case, the persons listed in Part 4 of Article 86 of the CPC may nevertheless be unable to participate in it for objective reasons and may be released from the proceedings in the case.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishovich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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