Commentary on Article 91. Recusal of the Court Session Secretary and the Court Bailiff of the Criminal Procedure Code of the Republic of Kazakhstan
1. The court session secretary and the court bailiff may not participate in criminal proceedings:
1) if any of the circumstances provided for in Article 87 of this Code exist;
2) if their incompetence is discovered.
2. The previous participation of a person in a court hearing as a court session secretary or a court bailiff shall not constitute a circumstance precluding their further participation in court hearings in the corresponding capacity.
3. The issue of recusal of the court session secretary and the court bailiff shall be resolved by the court hearing the case.
By virtue of the functions they perform, the court session secretary and the court bailiff are most closely connected with judicial activities and influence the effectiveness of their results. Therefore, they may also be subject to recusal on grounds arising from the broadest possible range of circumstances (Article 91 of the Criminal Procedure Code), which shall be resolved by the court hearing the criminal case (see the commentary to Articles 83–84 and Part 1 of Article 87 of the Criminal Procedure Code).
As an independent ground for recusal, the law identifies the discovered incompetence of these persons, which should presumably be understood as a discrepancy in the level of their knowledge, abilities, skills and other qualities, identified during the court hearing.
However, this situation, as well as, generally speaking, all subsequent cases (Articles 92–93 of the Criminal Procedure Code), can be avoided through the strict and careful selection of persons engaged to participate in criminal proceedings in one capacity or another.
An important point here is the provision of Part 2 of Article 91 of the Criminal Procedure Code regarding the admissibility of the participation of the court session secretary and the court bailiff in the same case after its retrial by the court of first instance following the reversal of the original judgment. This is due to the fact that they do not decide the merits of the case, but merely ensure the proper conduct of the main court hearing.
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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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