Commentary to article 54. Judge of the Criminal Procedure Code of the Republic of Kazakhstan
1 A judge who, within the limits of his competence, considers a case alone, carries out administrative actions to prepare a court session or ensure the execution of his sentence or other decision, and resolves petitions and complaints specified in part three of Article 53 of this Code, shall have the powers of the court.
2 A judge considering a case as part of a panel of judges shall enjoy equal rights with the presiding judge and other judges in resolving all issues arising in connection with the case under consideration. In case of disagreement with the opinion of other judges on the issues under consideration, the judge has the right to express his dissenting opinion in writing, which is sealed in an envelope and attached to the criminal case. Opening of the envelope and familiarization with the judge's dissenting opinion are allowed only by a higher court when considering the case.
3 An investigating judge is a judge of the court of first instance, whose powers include exercising judicial control over the observance of the rights, freedoms and legitimate interests of persons in criminal proceedings in accordance with the procedure provided for by this Code. The investigating judge (judges) is appointed from among the judges by the chairman of this court. If it is necessary to replace the investigating judge, he may be reassigned.
1 The powers of the court provided for in Article 53 of this Code are fully exercised by: a single judge of a district court who examines a criminal case under the jurisdiction of this court in the first instance (Article 306 of the CPC); a judge who, on behalf of the chairman of the court, resolves the issue of accepting the case for trial (Articles 319-330 CPC); a judge 472, 478 of the CPC); a judge who examines complaints about the actions and decisions of the prosecutor and criminal prosecution authorities (Articles 106 of the CPC). Thus, the norm of Part 1 of Article 54 of this Code emphasizes the unified and independent status of judges, no matter in which part of the judicial system they are, regardless of their procedural functions during the proceedings. This corresponds to the provision in paragraph 1 of Article 79 of the Constitution that the courts consist of permanent judges.
2 The norm of Part 2 of Article 54 of this Code establishes the independence and uniform status of judges when they work as part of the judicial board. For example, if one of the judges is unable to continue participating in the trial, he is replaced by another judge, and the trial begins from the beginning (Part 2 of Article 332 of the CPC), except in cases provided for in Article 333 of this Code; when a substitute judge is present in the main trial from the beginning of the opening of the court session or from the moment the court makes a decision on with his participation and, in case of retirement of the judge, replaces him. At the same time, the trial continues. A substitute judge shall enjoy the rights of a judge from the moment of the retirement of the previous judge. A substitute judge who has taken the place of a retired judge has the right to demand the resumption of any judicial actions (Part 2 of Article 333 of the CPC);
3. The activity of the court in authorizing preventive measures, measures of procedural coercion, consideration of complaints about actions (inaction) and decisions of the inquirer, the body of inquiry, the investigator and the prosecutor, as well as related to the exercise of other powers specified in Article 55 of this Code, is a type of justice carried out at the stage of preliminary investigation. The judicial procedure for restricting freedom or reviewing complaints against the actions of the preliminary investigation authorities has serious differences from the prosecutor's sanction and supervision, since it comes from a judge, an independent person who is not responsible for the state of law and order and is not associated with the status of a public prosecutor.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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