Commentary to article 367. Interrogation of the defendant The Criminal Procedure Code of the Republic of Kazakhstan

Before questioning the defendant, the presiding judge explains to him the right to give or not to testify about the charges and other circumstances of the case, as well as that everything said by the defendant can be used against him.

If the defendant agrees to testify, he is first questioned by the defense attorney and the participants in the trial on the part of the defense, then by the public prosecutor and the participants in the trial on the part of the prosecution. The Chairman removes leading questions and questions that are not relevant to the case.

The court asks the defendant questions after the interrogation by the parties, but clarifying questions can be asked at any time during the interrogation.

The interrogation of the defendant in the absence of another defendant is allowed at the request of the parties or at the initiative of the court, on which a decision is issued. In this case, after the defendant returns to the courtroom, the testimony entered in the minutes of the court session, given in his absence, is read out to him, and the opportunity is given to ask questions to the defendant questioned in his absence.

Giving evidence during a judicial investigation is the right, not the duty, of the defendant, therefore, the presiding judge is obliged to explain to the defendant before the start of the interrogation that he has the right to give or not to give evidence, as well as that everything he says can be used against him.

If the defendant agrees to testify, he is first questioned by the defense attorney and the participant in the court session on the part of the defense (the defendant's legal representative, the civil defendant), then by the public prosecutor and the participants in the trial on the part of the prosecution (the victim, his representative, the civil plaintiff). The defendant's refusal to testify is not evidence of his guilt. The court asks questions to the defendant after his interrogation by the parties, and clarifying questions at any time during the interrogation. The court's task is to fully disclose the defendant's position on the charges. It is necessary to find out how the defendant himself describes the circumstances of the crime, how he evaluates his actions, and what arguments he cites to refute the charges. If the defendant pleads not guilty, the task is to find out how true his explanations are, whether the versions he puts forward are sound. In the case when the defendant pleads guilty, it should not be ignored that he remains an interested party.  Initially, the defendant presents his testimony in a free narrative, which cannot be interrupted and questions cannot be asked. After the defendant's testimony, he is interrogated by the parties. The questions asked to the defendant must be clear and specific, clearly formulated. By their orientation, questions can be clarifying, complementary, reminiscent, and control.

A leading question is considered to be one in which, both directly and in a veiled, hidden form, a specific, definite answer to the question posed or a variant of the answer to it is contained. A question unrelated to a criminal case should be understood as a question that goes beyond the scope of judicial proceedings.

The defendant is present during the interrogation of other defendants. At the same time, he has the right to ask them questions and give evidence about the information they provided during interrogations.

In order to establish the truth, the law allows for the interrogation of one defendant in the absence of another at the request of the parties or on the initiative of the court, on which an appropriate resolution is issued. If the defendant is removed from the courtroom during the interrogation of another defendant, then at the end of the interrogation he returns to the courtroom and the presiding judge informs him of the contents of the testimony given in his absence. The defendant is then given the opportunity to ask questions to the defendant who was interrogated in his absence.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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