Commentary on Article 94. Removal of Defence Counsel, a Representative of the Victim (Private Prosecutor), Civil Claimant or Civil Defendant from Participation in Criminal Proceedings under the Criminal Procedure Code of the Republic of Kazakhstan
1. Defence counsel, as well as a representative of the victim (private prosecutor), civil claimant or civil defendant, may not participate in criminal proceedings if any of the following circumstances exist:
1) if that person previously participated in the case as a judge, prosecutor, investigator, inquirer, court session secretary, court bailiff, witness, expert, specialist, interpreter or attesting witness;
2) if that person is related or has other personal dependency relationships with an official who has participated or is participating in the investigation or judicial consideration of the case;
3) if that person is providing or has previously provided legal assistance to a person whose interests are opposed to those of the person under their defence or representation, or is related to such persons or has other personal dependency relationships with them;
4) if that person is not entitled to act as defence counsel or representative by virtue of law or a court decision.
2. The issue of removing defence counsel, a representative of the victim (private prosecutor), civil claimant or civil defendant from participation during pre-trial investigation shall be decided by the prosecutor, and during court proceedings — by the court considering the case.
Understanding the provisions of Article 97 of the CPC is closely connected with the provisions of the CPC articles governing the procedural status of defence counsel and representatives in criminal proceedings (see also the commentary on the provisions of Articles 66–70 and 76–77 of the CPC). The status and competence of these persons are sufficiently significant; therefore, the authority to decide on their removal from the case falls within the competence of the prosecutor before the case reaches court or the court during the consideration of the criminal case (Part 2 of Article 94 of the CPC).
Primarily, all grounds for removing these persons from the case are dictated by the need to ensure objectivity and impartiality in the proceedings and are reduced to the following restrictions precluding their participation in the case: their previous participation in the case as an official of the body conducting the criminal proceedings or as another person involved in the case (subparagraph 1) of Part 1 of Article 94 of the CPC); the existence of personal dependency relationships between them and persons who previously conducted, as well as those currently conducting, the proceedings in the case (subparagraph 2) of Part 1 of Article 94 of the CPC); professional or personal dependency on persons to whom they are providing or have previously provided legal assistance in the case and whose interests in that case are diametrically opposed to those of the persons they defend or represent (subparagraph 3) of Part 1 of Article 94 of the CPC).
3. As for the rules of the provision set out in subparagraph 4) of Part 1 of Article 94 of the CPC, they are specifically elaborated in the Law “On Advocacy and Legal Assistance” (paragraph 2 of Article 32) and the Civil Procedure Code and apply to all defence counsel and representatives.
Thus, in accordance with Parts 1–3 of Article 59 of the Civil Procedure Code, judges, investigators, prosecutors and deputies of representative bodies may not act as representatives in court, except in cases where they participate in the proceedings as authorised representatives of the respective organisations or as legal representatives. Lawyers who have accepted an assignment to provide legal assistance in violation of the requirements of the legislation of the Republic of Kazakhstan on advocacy may also not act as representatives in court. Furthermore, a person may not act as a representative if, in the same case, that person is providing or has previously provided legal assistance to persons whose interests conflict with the interests of the person being represented, or has participated as a judge, prosecutor, expert, specialist, interpreter, witness or attesting witness, or if that person is related to the opposing party or a third party, a judge, prosecutor, court session secretary, expert who has given an opinion in the case, specialist or interpreter, or if, due to their mental health condition, age or other reasons, that person is independently unable to exercise representation.
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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