Commentary on Article 90. Recusal of a Lay Witness under the Criminal Procedure Code of the Republic of Kazakhstan

1. A lay witness may not participate in a pre-trial investigation if any of the circumstances provided for in Article 87 of this Code and in Parts Two, Three and Four of this Article exist.

2. A lay witness may not participate in a pre-trial investigation if he or she is personally or officially dependent on the body conducting the criminal proceedings. Employees of law enforcement agencies and courts, students of specialized legal educational institutions, convicted persons under probation supervision, and persons being prosecuted in other criminal cases may likewise not participate as lay witnesses.

3. The previous participation of a lay witness in the conduct of an investigative action shall not constitute a circumstance precluding his or her participation in the conduct of another investigative action in the same criminal case, except where the participation of any lay witness has acquired a systematic nature.

The recusal of a lay witness shall be decided by the person conducting the investigative action.

For concealing circumstances that preclude his or her participation in the proceedings in the case and for failing to fulfil the obligation to withdraw from participation in the proceedings, as provided for in Part One of Article 86 of this Code, the lay witness shall bear liability in accordance with the procedure provided for in Article 160 of this Code.

The provisions of Parts One and Two of Article 90 of the CPC are organically interconnected with the provisions of Part One of Article 87 of the CPC and Part Two of Article 82 of the CPC, in which we have already examined certain grounds for the recusal of a lay witness. At the same time, the provisions of Part Two of Article 90 of the CPC specify the range of legal subjects who unequivocally may not act as lay witnesses in a criminal case.

Since a lay witness, in the classical understanding of this term, is a participant in a specific investigative action for the purposes of which he or she is brought into the case, the decision on his or her recusal falls within the competence of the investigator or the inquiry officer.

3\. In addition, particular attention should be paid to the provisions of Part Three of Article 90 of the CPC, which contain an unequivocal prohibition on involving a person as a lay witness where the status of a lay witness has acquired a systematic nature. Unfortunately, such situations do occur in investigative practice. When such cases are identified, first and foremost by the heads of investigations, the prosecutor, the procedural prosecutor or the judge hearing the case, procedural actions conducted in a particular case with the participation of such a “regular” lay witness must, without doubt, not be recognized as evidence in the criminal case. The systematic participation of the same citizen as a lay witness may also be established in other criminal cases. Therefore, the participation of such a lay witness in the conduct of an investigative action must be excluded in all cases.

4\. A monetary penalty may be imposed on a lay witness by an investigating judge in accordance with Articles 159–160 of the CPC if the lay witness conceals and fails to submit a motion for his or her removal from the case due to the existence of circumstances preventing his or her participation in the investigative action (Part One of Article 89 of the CPC).

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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