Commentary on Article 93. Recusal of an Expert under the Criminal Procedure Code of the Republic of Kazakhstan

1. An expert may not participate in criminal proceedings:

1) if any of the circumstances provided for in Article 87 of this Code exist;

2) if he or she was or is in an official or other relationship of dependence on the interrogating officer, investigator, prosecutor, judge, suspect, accused, their defence counsel, legal representatives, victim, civil claimant, civil defendant or their representatives;

3) if he or she conducted an audit or other verification activities, the results of which served as grounds for initiating criminal prosecution;

4) if his or her incompetence has been established;

5) if he or she participated in the case as a specialist, except in cases where a medical specialist in the field of forensic medicine participates in the examination of a human corpse in accordance with Article 222 of this Code.

2. A physician who provided medical assistance to the person concerned prior to the appointment of the examination may not participate as an expert in the examination of a living person or a corpse.

3. The previous participation of a person in the same case as an expert shall not constitute a circumstance precluding the assignment of an examination in the case to that person, except in cases where a repeated examination is appointed following an examination conducted with his or her participation.

4. The issue of recusal of an expert shall be resolved by the authority conducting the criminal proceedings.

The analysis of the grounds for recusal of an expert is based on the preceding provisions concerning his or her procedural status in the case (see also the commentary on the provisions of Article 79 of the CPC), while the resolution of the issue of recusal is, under the law, assigned to the competence of the authority conducting the criminal proceedings, whose powers include the appointment of a forensic examination in the case (Part 4 of Article 93 of the CPC).

In the absence of grounds for recusal specified in Part 1 of Article 87 of the CPC and the parts of Article 93 of the CPC, an expert who participated at the investigation stage of a criminal case may conduct an examination at the judicial stages of criminal proceedings. For example, at the main court hearing, upon the motion of the parties or on its own initiative, the court has the right to appoint an examination, which may be conducted by an expert who provided an expert opinion during the pre-trial investigation (Parts 1 and 2 of Article 373 of the CPC).

3. It is undoubtedly the case that the law identifies, as a separate circumstance warranting particular attention in relation to the recusal of an expert from a case, the existence of any form of personal dependence of the expert on the parties to the criminal proceedings, as a factor that casts doubt on his or her selection as an expert, the examination conducted by him or her, or the opinion issued by him or her (Subparagraph 2) of Part 1 of Article 93 of the CPC).

The provisions of Subparagraph 3) of Part 1 of Article 93 of the CPC also establish a substantial ground for the recusal of an expert from a case. This ground reflects the legislator's intention to ensure the proper impartiality of the expert, excluding any connection on his or her part with other verification activities, including audits that he or she may have conducted before the commencement of the pre-trial investigation in the case concerned.

It should be noted that the rule set out in Subparagraph 4) of Part 1 of Article 93 of the CPC is also inherent in certain other participants in criminal proceedings (Articles 91–92 of the CPC) and is entirely applicable to an expert whose limited knowledge and lack of professionalism in the case have reasonably been relied upon as grounds for his or her recusal from the case.

An expert's incompetence is often associated with the need to conduct a repeated examination in the case, which is referred to in Part 3 of Article 93 of the CPC. It is obvious that such an expert must not be permitted to conduct a repeated examination, and this is a requirement of the law (Part 3 of Article 93 of the CPC). Under the law, a repeated examination is appointed to examine the same objects and resolve the same questions in cases where the previous expert opinion is insufficiently substantiated, its conclusions raise doubts, or the procedural rules governing the appointment and conduct of the examination have been substantially violated (Part 3 of Article 287 of the CPC). Therefore, Part 5 of Article 287 of the CPC expressly provides: “The conduct of a repeated examination shall be entrusted to a commission of experts. Experts who conducted the previous examination may be present during the conduct of the repeated examination and provide explanations to the commission; however, they shall not participate in the expert examination or in the preparation of the expert opinion.”

Since a specialist and an expert are holders of different areas of competence, it is objectively clear that a person who previously participated in the case as a specialist may not act as an expert (Subparagraph 5) of Part 1 of Article 93 of the CPC). However, due to the specific nature of the situation described, this circumstance does not apply to cases where, prior to the appointment of the examination, a physician was engaged to conduct an external examination of a human corpse. That is, such a physician may act as an expert in cases of this kind.

It is another matter that a person who previously provided the necessary medical assistance to a living person or to a deceased person, that is, to the latter's body before death, may not be appointed as an expert in the case (Part 2 of Article 93 of the CPC). This is particularly inadmissible when the appointment of an examination concerns cases involving criminal offences in the medical field (Chapter 12 of the Criminal Code).

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Law Firm of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Messages