Commentary on Article 89. Recusal of an Investigator and an Inquiry Officer of the Criminal Procedure Code of the Republic of Kazakhstan
1. An investigator and an inquiry officer may not participate in the investigation of a case if any of the grounds provided for in Article 87 of this Code exist.
2. The participation of an investigator and an inquiry officer, in their respective capacities, in an investigation previously conducted in the relevant criminal case shall not constitute a circumstance precluding their further participation in the proceedings in that criminal case.
3. The issue of recusal of an investigator or an inquiry officer shall be resolved by the head of the investigative department, the head of the inquiry body, or the prosecutor.
Like a judge, an investigator (inquiry officer) is at the very epicentre of criminal proceedings. As we have already noted above, like a judge, they bear full responsibility for the legality and validity of procedural actions and decisions, but in the pre-trial proceedings in a case. The legality and validity of a preliminary investigation depend on many factors, including whether the investigator has the legal and moral right to investigate a particular criminal case. In this regard, all the grounds for recusal provided for a judge in a case apply to the investigator (Part 1 of Article 87 of the CPC; see also the commentary on Articles 59 and 60 of the CPC).
In principle, there are numerous legal possibilities in pre-trial proceedings for removing an investigator from further conducting an investigation of a criminal case when grounds for recusal exist (Part 3 of Article 89 of the CPC). First and foremost, such powers are vested in the head of the investigative department, who, where grounds for recusal of an investigator exist, has the right to remove that investigator from further proceedings in the case (Subparagraph 2 of Part 2 of Article 59 of the CPC). The prosecutor, upon discovering violations of the law in the conduct of a preliminary investigation or inquiry, including following the consideration of complaints against the actions and decisions of an inquiry officer or investigator, also has the right to remove the investigator or inquiry officer from further investigation of the criminal case (Subparagraph 7 of Part 2 of Article 193 of the CPC). The head of the inquiry body also has similar powers in relation to an inquiry officer (Subparagraph 2 of Part 4 of Article 62 of the CPC).
In the absence of grounds for recusal of an investigator or inquiry officer, they are entitled to conduct the investigation of a criminal case when the investigation of a criminal case previously terminated by them is resumed (Part 2 of Article 89 of the CPC, Articles 290–291 of the CPC).
If, however, the case is returned to the prosecutor on the grounds specified in Article 323 of the CPC, it is advisable to assign it to another investigator or inquiry officer. This is because such cases (those involving expedited pre-trial proceedings or cases in which a procedural agreement has been concluded) are returned precisely because, during the preparation of the case for trial at first instance, the court has established substantial violations of criminal procedure legislation preventing the scheduling of the main court hearing, or such violations have been established by the court during the main court hearing. In this situation, it is difficult to rely on the objectivity of the investigator or inquiry officer who previously conducted the investigation of these 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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