Commentary to article 643. Unmotivated disqualification of candidates for jurors The Criminal Procedure Code of the Republic of Kazakhstan
If, as a result of fulfilling the requirements of Article 642 of this Code, more than seventeen candidates for jurors remain to participate in the court session, the presiding judge shall announce the number of remaining candidates for jurors, after which he shall put tickets with their names in the ballot box, mix the tickets and extract from it as many tickets as necessary so that seventeen remain in the ballot box.
After fulfilling the requirements of the first part of this article, the presiding judge hands over the remaining seventeen tickets with the names of the candidates for jurors for the public prosecutor, as well as the defendant and (or) his defense attorney to conduct an unmotivated challenge, as a result of which twelve candidates for jurors should remain.
The public prosecutor, the defendant and his defense counsel have the right to request, through the presiding judge, that any of the candidates for the jury introduce themselves.
If one defendant participates in the case, the unmotivated withdrawal of two candidates for jurors is carried out by the public prosecutor, and then three candidates for jurors – by the defendant and (or) his defense counsel in the specified order.
If several defendants are involved in the case, the public prosecutor has the right to select no more than two candidates for the jury. In this case, the recusal of candidates for jurors is carried out by mutual agreement of the defendants, and in the absence of such agreement – by dividing the number of recusal candidates for jurors equally between them, if possible.
If it is impossible to comply with the requirements of part five of this article, the selection of candidates for jurors by several defendants must be carried out by drawing lots and placing tickets with the names of all the defendants in the ballot box. The draw is conducted in an amount equal to the number of undefeated candidates for the jury. The defendant has the right to select as many candidates for the jury as the number of times the ticket with his name has been removed from the ballot box by the presiding judge.
The refusal of any of the defendants from the right to challenge candidates for jurors does not entail restrictions on the rights of other defendants to withdraw so many candidates for jurors that there are at least twelve of them.
Candidates for jurors may be challenged by the public prosecutor, the defendant or his defense counsel without specifying the reasons for the challenge by writing the word "challenge" on the tickets with the names of the candidates for jurors, affixed with a signature.
The defendant has the right to instruct his defense attorney to exercise the right to challenge candidates for jurors. If the defendant waives his right to challenge candidates for jurors, then the defense attorney, without his consent, does not have the right to participate independently in challenging candidates for jurors.
If the defendant or all the defendants refuse, if several defendants participate in the case, their right to challenge candidates for jurors is withdrawn by drawing lots, during which the presiding judge or the secretary of the court session extracts as many tickets from the ballot box indicating the names of the undefeated candidates for jurors as they can still be allocated.
If the number of candidates for jurors turns out to be more than 17, then the parties declare unmotivated challenges to them so that their number is equal to 17. In such cases, the presiding judge announces the number of remaining candidates for jurors and performs the actions provided for in Article 643 of the CPC.:
1) He puts all the tickets into the urn with the names of the candidates for the jury, mixes the tickets and extracts as many tickets as necessary so that there are seventeen left in the urn.
2) He hands over the remaining seventeen tickets with the names of the candidates for the jury for an unmotivated recusal by the public prosecutor, as well as by the defendant and (or) his defense attorney, as a result of which twelve candidates for the jury should remain.
If one defendant participates in the case, the public prosecutor has the right to declare an unmotivated challenge to two candidates for jurors, and after that, an unmotivated challenge is declared to three candidates for jurors by the defendant and (or) his defense counsel.
2.If several defendants are involved in the case, the public prosecutor has the right to select no more than two candidates for the jury.
For example, there are three defendants in the case. The prosecutor has the right to declare an unmotivated challenge to two candidates for jurors, and the other three may be challenged by the defendants by mutual agreement.: They can agree that one defendant will challenge all three candidates, or they can decide that one will challenge one candidate and the other defendant will challenge the other two candidates. Or they may decide that each of the defendants will file an unmotivated challenge for one of the three candidates or instruct their defenders to do so.
3. If no agreement has been reached between the defendants, then the presiding judge shall divide the number of candidates for jurors equally between them, if possible, but if it is impossible to do so, for example, with a significantly larger number of defendants, then the withdrawal of candidates for jurors by several defendants must be carried out by drawing lots.
It's done like this:
For example, the prosecutor declared an unmotivated challenge to two candidates for jurors, the defendants were left to challenge three.
The draw will be conducted in an amount equal to the number of undefeated candidates for the jury. The presiding judge places tickets with the names of all the defendants in the ballot box, mixes them up, and then extracts one ticket from the ballot box and announces the name of the defendant, thus, this defendant has the right to declare an unmotivated challenge to one candidate for the jury. Then the chairman repeats this procedure two more times. Each defendant has the right to select as many candidates for the jury as the number of times the ticket with his name has been removed from the ballot box by the presiding judge.
By this method, one defendant may receive the right to apply for an unmotivated challenge to all three candidates for jurors, while the rest will not receive such a right, and there may be a different outcome of the draw.
4. The refusal of any of the defendants from the right to challenge candidates for jurors does not entail restrictions on the rights of other defendants to withdraw so many candidates for jurors that there are no more and no less than twelve of them.
The defendant has the right to personally exercise the right to apply for an unmotivated disqualification of candidates for jurors, or to instruct his defense attorney to do this. The defender, without his consent, has no right to participate independently on his own initiative in the recusal of candidates for jurors.
5. Before filing an unmotivated challenge, the public prosecutor, the defendant and his defense counsel have the right to request, through the presiding judge, that one of the candidates for the jury6 present themselves.
When filing an unmotivated challenge to candidates for jurors, the public prosecutor, the defendant or his defense counsel do not indicate the reasons for the challenge. They write the word "recusal" on the tickets indicating the names of the candidates they have selected for the jury and affix their signature to this entry.
Tickets with the names of the candidates for jurors who were unmotivated by the parties are attached to the case file.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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