Commentary on Article 87 of the Criminal Procedure Code of the Republic of Kazakhstan. Recusal of a Judge

1. A judge may not participate in the consideration of a case if he or she:

1) is not a judge to whose jurisdiction the criminal case has been assigned in accordance with this Code;

2) participated in the criminal case in question as an investigating judge, or considered complaints and motions of the prosecutor against rulings of the investigating judge;

3) is the victim, civil claimant or civil defendant in the case, or has been summoned or may be summoned as a witness;

4) participated in the proceedings in the criminal case in question as an expert, specialist, interpreter, attesting witness, court hearing secretary, inquiry officer, investigator, prosecutor, defence counsel, legal representative of the suspect or accused, or representative of the victim, civil claimant or civil defendant;

5) is a relative of the victim, civil claimant, civil defendant or their representatives, a relative of the suspect, accused or his or her legal representative, a relative of the prosecutor, defence counsel, investigator or inquiry officer, or is related by marriage to any of the participants in the proceedings;

6) there are other circumstances providing grounds to believe that the judge has a personal, direct or indirect interest in the case.

2. Persons connected by family ties or other relationships of personal dependence may not be included in the composition of the court hearing a criminal case.

3. A judge who participated in the consideration of a criminal case by a court of first instance may not participate in the consideration of that case by courts of appeal or cassation, or participate in the new consideration of the case by a court of first instance if the judgment or ruling terminating the case, adopted with his or her participation, has been set aside.

4. A judge who participated in the consideration of a case by a court of appeal may not participate in the consideration of that case by the courts of first instance and appeal after the appellate judgment or ruling adopted with his or her participation has been set aside, or in the consideration of the case by a court of cassation.

5. A judge who participated in the consideration of a case by a court of cassation may not participate in the consideration of that case by the courts of first instance, appeal and cassation after the ruling adopted with his or her participation has been set aside.

6. A judge who participated in the consideration of a case in previous judicial instances may not participate in the consideration of the same case by a court of cassation. A judge who participated in the consideration of a case by a court of cassation may not participate in the consideration of the same case by lower courts, or in the review of cassation court rulings in accordance with Part Four of Article 484 of this Code.

7. A judge who participated in the consideration of a case by a court of first instance, appeal or cassation may not participate in the consideration of that same case on the basis of newly discovered circumstances.

8. A recusal must be declared as soon as circumstances excluding the judge's participation in the case become known, at any stage of the criminal proceedings.

9. The issue of recusal of a judge, as well as of participants in the court proceedings subject to recusal, shall be resolved by the court in the deliberation room, with a ruling being issued.

10. A recusal declared against a judge shall be resolved by the other judges in the absence of the judge concerned, who has the right to publicly present his or her explanation regarding the recusal declared against him or her before the judges retire to the deliberation room. A recusal declared against several judges or the entire composition of the court shall be resolved by the full court composition by a majority vote. In the event of an equal number of votes, the judge shall be deemed recused. A recusal declared against an investigating judge considering motions for the application of a preventive measure or the conduct of investigative actions shall be resolved by that same investigating judge sitting alone, by issuing a ruling.

11. A recusal declared against a judge considering a case individually in accordance with Part One of Article 52 of this Code shall be resolved by the presiding judge of that court or another judge of that court, and, in their absence, by a judge of a higher court. If the application for recusal is granted, the criminal case, complaint or motion shall be transferred, in accordance with the established procedure, to another judge for consideration.

12. A ruling rejecting or granting a recusal is not subject to appeal (review upon a motion of the prosecutor or a protest). Arguments expressing disagreement with the ruling may be included in an appeal, a motion of the prosecutor, or a motion for review of judicial acts under the cassation procedure, or in a protest.

Footnote. Article 87 was amended by the Laws of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (put into effect on 1 January 2016); and dated 11 July 2017 No. 91-VI (put into effect upon the expiry of ten calendar days after the date of its first official publication).

Every criminal case, as provided by Part 2 of Article 51 of the CPC, may be considered only by a lawful, independent, competent and impartial composition of the court. Along with other conditions governing judicial activity, the lawful and well-founded application of the rules of the institution of judicial recusal from proceedings in a case also contributes to ensuring these qualities of the court. Since the entire criminal process is carried out for the purpose of resolving a criminal case on its merits exclusively by the court, as the function of administering justice in criminal cases belongs specifically to the court, the CPC sets out in detail the circumstances that form the basis for any recusal in relation to a judge.

The rules of Paragraph 1 of Part 1 of Article 87 of the CPC mean that judges must strictly observe the jurisdiction established by the CPC when considering criminal cases. Criminal procedural legislation sufficiently clearly delineates the jurisdiction (competence) of criminal cases among all levels of the judicial system in the courts of first instance, appeal and cassation, as well as in proceedings based on newly discovered circumstances. Applications by the parties alleging that a case does not fall within the jurisdiction of a particular court shall be resolved by that court itself. A court ruling issued on the issue of jurisdiction may be appealed to a higher court, whose decision is final and is not subject to appeal, review upon a motion of the prosecutor, or protest (Part 2 of Article 318 of the CPC).

3. The rules of Paragraph 2 of Part 1 of Article 87 of the CPC unequivocally prohibit an investigating judge from resolving a criminal case on its merits under any circumstances, since this function does not fall within the powers of an investigating judge during the period of his or her service in that capacity under the law; that is, it does not extend to cases in which he or she acted as an investigating judge (Part 3 of Article 54, Articles 55—56 of the CPC). Accordingly, a judge of a higher court who considered complaints and motions of the prosecutor against rulings of the investigating judge in a criminal case pursuant to Article 107 of the CPC may also not participate in the consideration on the merits of that same case within the framework of which those complaints and motions were submitted. The contrary would give rise to doubts about his or her impartiality and the fairness of the judicial decision adopted.

The circumstances providing grounds for the recusal of a judge under Paragraphs 3—5 of Part 1 of Article 87 of the CPC are exclusively dictated by the need to maintain a high level of impartiality, legality and soundness in judicial activity: either the judge is a party to the case that he or she is required to consider (subparagraphs 2 and 18 of Article 7 of the CPC), or he or she acts in that case as another person participating in the criminal proceedings (Articles 78—85 of the CPC), or he or she is a relative of someone on the prosecution or defence side. These grounds are independent in nature and shall be applied separately.

Part 1 of Article 87 of the CPC is not exhaustive in terms of defining all the grounds for the recusal of a judge. A judge may not participate in a case if he or she has a personal, direct or indirect interest in that case — Paragraph 6 of Part 1 of Article 87 of the CPC completes the list of grounds for recusal in this manner. For example, the judge previously studied in the same school class or university group as the defendant or victim, performed military service together with them in the same military unit, is their neighbour at their place of residence, once worked together with them or their close relatives, or the spouses of the judge and participants in the proceedings are on friendly terms (they communicate with one another, studied together), and so on. Naturally, even in such situations, the final decision remains with the judge himself or herself, who must remember the possible existence of such circumstances and, if they compromise his or her impartiality in the case, must declare self-recusal both before the commencement of the main court hearing and during the court session when such circumstances are discovered.

A particular judge must pay attention to the above-mentioned circumstances constituting grounds for recusal already while studying a criminal case received by the court. The Supreme Court emphasizes this in its Regulatory Resolution No. 10 dated 8 December 2017, “On Certain Issues Concerning the Application by Courts of the Rules of Criminal Procedural Legislation in Relation to a Criminal Case Received by the Court”:

“If, when studying a criminal case received by the court, a judge establishes circumstances excluding the possibility of his or her participation in the criminal proceedings on the grounds specified in the relevant parts of Article 87 of the CPC, then, without performing any procedural actions or adopting any decisions related to the preparation of the case for consideration, the judge shall, in accordance with the requirements of Part One of Article 86 of the CPC, withdraw from further proceedings, immediately notifying the presiding judge of the court thereof in writing so that the case may be reassigned to another judge in accordance with the established procedure.

If circumstances preventing all judges of that court from considering the case exist, the case shall, upon a submission by the judge or the presiding judge of the court and without holding a preliminary hearing, be referred to a higher court to resolve the issue of transferring the case to another court of the same level.”

However, it should be borne in mind that the transfer of a case received by a court from the court having jurisdiction over it to another court of the same level on the grounds specified in Article 317 of the CPC is permitted only with the consent of the accused and in the absence of objections from the other participants in the proceedings. Accordingly, these circumstances are established during the preliminary hearing (Paragraph 9 of the Regulatory Resolution of the Supreme Court dated 8 December 2017 No. 10, “On Certain Issues Concerning the Application by Courts of the Rules of Criminal Procedural Legislation in Relation to a Criminal Case Received by the Court”).

Concluding the list of grounds for the recusal of a judge, Part 2 of Article 87 of the CPC, further developing the provision of Part 3 of Article 86 of the CPC, additionally emphasizes that relationships of personal dependence, which may take various forms, are not permitted among the composition of a court hearing a case collegially (Article 52 of the CPC).

The provisions of Parts 3—7 of Article 87 of the CPC require proper understanding and uniform application. These provisions do not permit a judge to participate repeatedly in one or another composition of the court in the same criminal case. In a particular case, a judge may act in this capacity only once. This rule applies to all judicial instances that may concern the criminal case in question, that is, those that may review the final judicial acts in the case following complaints and motions of participants in the proceedings, motions of the prosecutor and protests of the relevant prosecutors. This is an inviolable rule, which is also based on the need to ensure the high standard of justice of the judgment in the case, in other words, its legality, soundness and fairness.

A recusal must be declared against a judge before the commencement of the judicial investigation, since the continuation of such proceedings (with an improper judge) may call into question all proceedings in the subsequent stages of the criminal process. If circumstances requiring the recusal of a judge are discovered later, a recusal may be declared against the judge at any stage of the criminal proceedings when such circumstances are established (Part 8 of Article 87 of the CPC). This must be fully understood both by judges considering a case on its merits and by judges of higher courts. A judgment shall in all cases be set aside by a court of appeal or cassation if it was rendered by an unlawful composition of the court. This is unconditionally established by Paragraph 2 of Part 3 of Article 436 and Part 9 of Article 494 of the CPC.

The procedure for resolving a recusal declared against a judge, judges considering a case, or an investigating judge is regulated by Parts 9—11 of Article 87 of the CPC according to the following rules: the issue of recusal of one judge shall be resolved by the remaining judges of the court composition considering the case, with the judge concerned having the right to provide a public explanation regarding the application; the issue of recusal of the entire composition of the court shall be resolved by all judges of that composition; a recusal declared against a judge considering a case individually shall be resolved by the presiding judge of the court or another judge of that court, and, in their absence, by a judge of a higher court. A recusal declared against an investigating judge shall be resolved by the investigating judge himself or herself, by issuing a ruling. The following clarification should be made here: the law links these issues to recusals declared against an investigating judge when he or she considers motions for the application of preventive measures or the conduct of particular investigative actions.

11. In all the above-mentioned cases, the issue of recusal of judges or refusal to grant such recusal shall be formalized by a court ruling issued in the deliberation room. Such ruling is final and is not subject to appeal or protest. However, arguments against it may form part of appeals submitted by participants in the criminal proceedings, motions of prosecutors under the appellate procedure, or motions of participants in the criminal proceedings and protests of prosecutors under the cassation procedure (Parts 9 and 12 of Article 87 of the CPC).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishuly 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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