Commentary on Article 88. Recusal of the Prosecutor of the Criminal Procedure Code of the Republic of Kazakhstan

1. A prosecutor may not participate in criminal proceedings if any of the circumstances provided for in Article 87 of this Code exist.

2. The participation of a prosecutor in pre-trial investigation, as well as the maintenance of the prosecution by the prosecutor in court, shall not constitute an obstacle to the prosecutor’s further participation in the same criminal case.

3. The issue of recusal of a prosecutor during pre-trial investigation shall be resolved by a superior prosecutor, and during court proceedings — by the court hearing the case.

First of all, a prosecutor may be removed from participation in a case before trial by a superior prosecutor or by the relevant court during the consideration of the case, on the same grounds as those applicable to a judge (Part 1 of Article 88 of the CPC). A motion to recuse a prosecutor is usually filed at the judicial stages, where the prosecution function (criminal prosecution) performed by the prosecutor unfolds in full (see also the commentary to subparagraphs 22 and 28 of Part 7 of Article 58 of the CPC). The fact is that, at the pre-trial stages, unlike an investigator, the prosecutor is practically distanced from the participants in the proceedings. The supervision of the investigation of specific criminal cases by the head of the prosecution authority and the procedural prosecutor, if the latter has been assigned to the case, is generally exercised through the head of the inquiry body, the head of the investigative department, the investigator, and the inquiry officer conducting their investigation, as well as by issuing written instructions and directions.

In principle, a situation in which a motion to recuse the relevant prosecutor may be filed is both standard and realistic. This occurs in cases where the prosecutor directly ignores complaints by the defence lawyer of a suspect or accused person concerning instances of biased and non-objective conduct of the investigation by the investigator. Naturally, the first reaction of an accused person committed for trial is to file a motion to recuse the prosecutor, who is associated with the image of a “negative” investigator, initially during the preliminary hearing (paragraph 7 of Article 320 of the CPC), and subsequently, if the motion for recusal is not upheld, also during the preparatory part of the main court hearing (Article 362 of the CPC).

3. At the same time, if there are no grounds for this as provided for in Part 1 of Article 87 of the CPC, a prosecutor or procedural prosecutor who has exercised supervision over a criminal case from the commencement of the pre-trial investigation and participates in the court of first instance as a public prosecutor shall not be subject to recusal (Part 2 of Article 88 of the CPC).

4. Incidentally, the issue of recusal of a prosecutor does not fall within the competence of a judge, including a judge of a higher court, regardless of the outcome of the case, when complaints against the actions and decisions of the prosecutor during the investigation of a criminal case are considered under the judicial procedure (Articles 106–107 of the CPC). At the same time, an investigating judge has the right to issue a separate ruling drawing the attention of a superior prosecutor to violations of the law committed by a lower-ranking prosecutor in the exercise of supervision and to the need for an appropriate response (Part 6 of Article 56 of the CPC).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishевich 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.

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