Commentary to article 650. Features of judicial investigation in a court with the participation of jurors The Criminal Procedure Code of the Republic of Kazakhstan

A judicial investigation in a court with the participation of jurors is conducted in accordance with the procedure established by Articles 364-378, 381 of this Code.

When announcing the operative part of the indictment, the Public Prosecutor has no right to mention the facts of the defendant's criminal record.

Jurors, through the presiding judge, may ask questions to the defendant, the victim, witnesses and experts after these persons have been questioned by the parties. The questions are presented by the jurors in writing and submitted to the presiding judge.

The presiding judge has the right to reject questions that he considers irrelevant to the case, as well as suggestive or offensive in nature, declaring the reasons for his refusal to the juror who asked the question.

The parties, without the participation of a panel of jurors, may request an examination of evidence previously excluded by the judge from the proceedings of the case, without stating their merits. The opinions of the participants in the trial in connection with such a request are heard by the judge in the absence of the jurors.

The relevant record shall be made in the minutes of the court session on the indicated measures taken by the presiding judge.

Circumstances related to the defendant's previous criminal record, recognition of him as a chronic alcoholic or drug addict, as well as other circumstances that may cause prejudice against the defendant by the jurors are not subject to investigation with the participation of jurors.

In case of violation of the procedure provided for in this article, the presiding judge is obliged to warn the relevant participant in the process about the inadmissibility of such behavior and explain to the jury so that they do not perceive what was said by the participants in the process. In case of disobedience to the orders of the presiding judge, a monetary penalty may be imposed on a participant in the proceedings in accordance with the procedure provided for by this Code.

1. Judicial investigation in cases of this category is conducted in compliance with the provisions of Chapter 44 of the CPC and the specifics provided for in Article 650 of the CPC.

According to article 364 of the CPC, a judicial investigation begins with a statement by the public prosecutor of the essence of the charges brought against the defendant. If he changes the charge to a less serious one or if he rejects part of the charge, the prosecutor is obliged to present to the court a new motivated wording of the charge in writing. In this case, if the victim does not insist on the previous charge, the court considers the case within the limits of the new charge.

After the prosecutor has stated the charges, the presiding judge must find out from the defendant his attitude to this charge. To this end, the presiding judge, as indicated in Article 365 of the CPC, interrogates the defendant whether he understands the charge, explains to him the essence of the charge and finds out if he wants to inform the court of his attitude to the charge.

The law obliges the presiding judge to explain to the defendant that he is not bound by a confession or denial of guilt made during the preliminary investigation, is not obliged to answer the question of whether he admits his guilt or not, and that the defendant's refusal to answer cannot be interpreted to his detriment, that he has the right to motivate his answer and that his silence will be interpreted like not admitting his guilt.

If a civil claim is filed in the case, the presiding judge must ask the defendant whether he recognizes (in full or in part) the civil claim brought against him. If the defendant gives an answer to this question, he must motivate him. The defendant's silence is interpreted as his non-recognition of the civil claim.

The parties have the right to ask the defendant questions aimed at clarifying his position on the charges presented by the prosecutor and the civil claim brought against him.

2. When conducting a judicial investigation, the court is guided by the principle of the immediacy and verbality of the trial, and takes into account that, in accordance with the law, the verdict of the court may be based only on the evidence that was examined at the court session.

Therefore, in accordance with Article 331 of the CPC, all evidence in the case presented by the parties to the prosecution and defense is subject to direct investigation in court proceedings. The court must hear the testimony of the defendant, the victim, and witnesses, announce and examine expert opinions, inspect physical evidence, announce protocols and other documents, and perform other judicial actions to examine evidence in the presence of jurors and with their participation, except in cases provided for by the CPC.

3. When examining evidence, the court must adhere to the procedure provided for in Article 366 of the CPC.

The prosecution is the first to present evidence. The procedure for examining the submitted evidence is determined by the court in agreement with the parties. The court issues a ruling on the establishment or modification of the procedure for examining evidence.

4. Traditionally, the procedure for examining evidence is established from the interrogation of the defendant. However, when adopting such a procedure for examining evidence, the court must take into account the defendant's right to testify at any time during the judicial investigation. If the defendant agrees, the examination of evidence begins with verifying his testimony by questioning him, if he has stated that he will testify later, the court has no right to force him, and in such cases changes the procedure for examining evidence.

When interrogating a defendant, the court must bear in mind that he has the right to be heard in court, but he is not obligated to give evidence to the court. Therefore, if the defendant refuses to testify in court on the charges, it is prohibited to force him to testify. According to the Constitution of the Republic of Kazakhstan and Article 27 of the CPC, no one is obliged to testify against himself, so the chairman explains to him the right to give or not to give evidence about the charges and other circumstances of the case, and that everything said by the defendant can be used against him.

If the defendant has agreed to testify, he is questioned first 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.

If there are several defendants, then at the request of the parties or the initiative of the court, one defendant may be interrogated in the absence of another defendant, on which the court issues a resolution. In this case, the defendant, in whose absence it was decided to interrogate another defendant, is removed from the courtroom. 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 (Article 367 of the CPC).

5. The court has the right to announce the testimony of the defendant given by him during the pre-trial proceedings in the case, as well as to reproduce the sound recordings, video recordings or film recordings of his testimony attached to the interrogation protocol in cases provided for in Article 368 of the CPC.:

1) if the defendant refuses to testify in court;

2) if the case is being considered in the absence of the defendant;

3) if there are significant contradictions between the testimony given in court proceedings and during the preliminary investigation.

Reproduction of audio-video recordings and filming is not allowed without prior announcement of the testimony contained in the relevant protocol of interrogation or the protocol of the court session.

6. The interrogation of the victim and witnesses must be carried out in compliance with the rules provided for in articles 369, 370, 371 of the CPC.

Based on the principle of immediacy, the disclosure of the testimony of the victim and witness, as well as the reproduction of audio-video recordings and filming of their interrogation, is allowed only in the presence of the circumstances specified in Article 372 of the CPC.:

1) if there are significant contradictions between these statements and the statements they gave in court.;

2) if the victim or witness is not present at the court session for reasons that exclude the possibility of their appearance at the trial.

7. In order to ensure the completeness, objectivity and comprehensiveness of the examination of evidence, the court, in accordance with Article 373 of the CPC, at the request of the parties or on its own initiative, has the right to appoint an expert examination.

The expert examination is conducted by the expert(s) who gave an opinion during the preliminary investigation, or another expert(s) appointed by the court.

In the latter case, the presiding judge must inform who is supposed to be entrusted with the examination, after which, in the absence of petitions for the recusal and self-recusal of the said person, the court decides to involve him as an expert in the case without removing the court to the conference room. Further, the expert is explained his procedural powers, he is warned about criminal liability for knowingly giving a false conclusion, which he subscribes to.

The examination in court is carried out according to the rules set out in Chapter 35 of the CPC, taking into account the requirements of Article 373 of the CPC.

The expert participating in the court session, with the permission of the presiding judge, has the right to participate in the investigation of circumstances related to the subject of the examination: to ask questions to the interrogated persons, to get acquainted with the materials of the criminal case, to participate in all judicial actions concerning the subject of the examination.

After clarifying all the circumstances relevant to the case, the chairman invites the parties to submit written questions to the expert. The questions raised should be announced and the opinions of the participants in the trial should be heard on them.

The parties have the right to submit objects and documents as objects of expert research. Excluding them from the list of such persons, the court is obliged to issue a reasoned decision. Having considered the issues and having heard the opinions of the parties on them, the court, by its decision, eliminates those of them that do not relate to the case or to the competence of the expert, formulates new questions. The person appointed as an expert is given a copy of the court's decision on the appointment of an expert examination and his rights and obligations provided for in article 79 of the CPC are explained. The court, having listened to the opinions of the parties, has the right to postpone the court session for the time necessary for conducting the study.

The expert shall give a written opinion and announce it at a court hearing, after which he may be questioned according to the rules provided for in Article 374 of this Code. The expert's opinion is attached to the case.

After conducting an expert examination in court proceedings, in the cases provided for in article 287 of the CPC, the court has the right to appoint an additional or repeated expert examination.

If an expert who gave an opinion during the pre-trial proceedings is called to court, the court, after the announcement of the conclusion, if it does not raise objections from the parties, has the right not to appoint an expert examination and limit itself to questioning the expert in compliance with the rules provided for in Article 374 of the CPC.:

- an expert's interrogation may be conducted only after the announcement of the conclusion in order to clarify, clarify or supplement it, taking into account the requirements of part three of Article 374 of the CPC;

- the expert is questioned first by the party at whose request the examination was appointed.;

- if the examination is carried out by agreement between the parties or on the initiative of the body conducting the criminal process, the prosecution side interrogates the expert first, then the defense side.

- the court has the right to ask the expert questions at any time during the interrogation.

8. In order to fully comply with the requirements of the law, when appointing an expert examination in court, it is necessary to take into account the clarifications given in the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 16 dated November 26, 2004 "On forensic examination in criminal cases".

        In order to ensure the comprehensiveness, completeness and objectivity of the investigation of all the circumstances of the case (Article 24 of the CPC), the court during the judicial investigation is obliged not only to interrogate the victims, witnesses, examine the expert's conclusions, but also to examine the material evidence described in the first article 118 of the CPC.

The procedure for examining physical evidence is determined by Article 221 of the CPC. And during the judicial investigation, the court, in accordance with article 375 of the CPC, is obliged itself (including the jurors) to inspect and present to the parties the material evidence attached to the case during the investigation and newly presented.

Physical evidence may be examined in court at any time during the judicial investigation, either at the request of the parties or at the initiative of the court. Physical evidence may be presented for examination to witnesses, an expert, or a specialist. The persons to whom the material evidence has been presented have the right to draw the court's attention to the circumstances relevant to the case that were revealed during the examination of the material evidence.

In the same manner and in compliance with the rules established by the first part of Article 375 of the CPC, the court may inspect the physical evidence at their location, because not all physical evidence due to their bulkiness and storage features may be in the case.

The presiding judge should keep in mind that when examining the physical evidence, the parties may have an opinion about their inadmissibility or, in connection with their inspection, about the inadmissibility of other evidence, and they will want to declare this to the court. In such cases, the chairman should be guided by the provision of the third part of Article 648 of the CPC. He must immediately remind the parties that they have no right, without the permission of the presiding judge, to mention in a court with the participation of jurors the inadmissibility of evidence or, conversely, the admissibility of evidence excluded from the proceedings, to refer to them to substantiate their position.

9. A judge should not acquaint jurors with factual data that is unacceptable as evidence. The law includes protocols as evidence. Protocols are a legally prescribed procedural form of recording procedural actions and data obtained during their implementation on the circumstances to be proved in a case.

Attention should be paid to article 119 of the CPC, according to which it is stated that the factual data contained in the protocols of investigative actions drawn up in accordance with the rules of the CPC are evidence in a criminal case if they certify the circumstances.:

directly perceived by the person conducting the criminal process,

established during inspection, examination, seizure, search, detention, seizure of property, seizure of correspondence, interception of messages, wiretapping and recording of telephone and other conversations, presentation for identification, receipt of samples, exhumation of a corpse, verification of testimony on the spot, investigative experiment, examination of physical evidence conducted by a specialist during the investigative action,

contained in the minutes of the court session and reflecting the course of judicial actions and their results.

In the second part of Article 119 of the CPC, it is stated that, in addition to those listed as evidence, factual data contained in protocols drawn up when making an oral statement about a crime, on the subjects and documents submitted, on self-confession, and explaining to persons their rights and duties may also be used.

Based on this, the court must investigate the circumstances recorded in the said protocols.

10. Article 376 of the CPC provides for the disclosure of investigative protocols during a judicial investigation. In this case, the protocols of investigative actions certifying the circumstances and facts established during the above-mentioned investigative actions are subject to disclosure in whole or in part.

The judges' attention should be drawn to the fact that the entry in the minutes of the court session on the announcement of the protocols contained in the case file is not an investigation of the circumstances recorded in these protocols. Publicizing and researching are not the same thing. It is necessary, first of all, to identify the circumstances that are recorded in the announced protocol, and then to investigate them.

Article 124 of the CPC explains that the study of evidence includes its analysis, comparison with other evidence, verification of evidence sources, collection of additional evidence to confirm or refute the evidence under investigation.

11. When examining the circumstances recorded in the protocols, the court should also pay attention to how the protocol itself was drawn up.

In accordance with the second part of Article 123 of the CPC, responsibility for keeping protocols during the inquiry and preliminary investigation is assigned respectively to the inquirer and investigator, and in court - to the chairman and the secretary of the court session.

        The court must make sure that the participants in the investigative and judicial actions indicated in the protocols have their rights explained (this is noted in the protocol): get acquainted with the protocols that record the course and results of these actions, make additions and corrections to the protocols, make comments and objections about the procedure and conditions for conducting this actions, propose your own version of the record in the protocol, and draw the attention of the inquirer, investigator, or court to circumstances that may be relevant to the case.

It should be borne in mind that additions, corrections, comments, objections, petitions and complaints of participants in investigative and judicial actions expressed orally are entered into the protocol, and those stated in writing are attached to the protocol. A reservation is made before the signatures at the end of the protocol about crossed-out or written words or other corrections.

In case of disagreement with the comments or objections, the inquirer, investigator or court shall issue a decision on this. If no such resolution has been issued, it means that these comments and suggestions have been accepted.

12. To consolidate evidence, along with the preparation of protocols, sound recording, video recording, filming, photographing, making casts, prints, plans, diagrams and other methods of capturing information have increasingly been used. A note shall be made in the protocol of the investigative action or in the protocol of the court session, indicating the technical characteristics of the scientific and technical means used, on the use by the participant of the investigative action or judicial proceedings of the indicated methods of securing evidence.

Phonograms, video recordings, films, photographs, casts, impressions, plans, diagrams, and other representations of the progress and results of an investigative or judicial action are attached to the protocol. Each application must have an explanatory inscription indicating the name, place, date of the investigative or judicial action to which the application relates. This inscription is certified with their signatures during the pre-trial proceedings by the inquirer or investigator and, if necessary, the witnesses, and in court - the chairman and the secretary of the court session.

Information about circumstances relevant to the case, recorded not only by drawing up protocols, but also using these technical means, obliges the court to examine, review, listen to them and compare the data contained in them with the data contained in the protocols. If they do not match, it is necessary to clarify the contradictions and give them an appropriate assessment.

13. According to the CPC (Article 120), documents may also be recognized as evidence if the information provided or certified in them by organizations, officials and citizens is relevant to the criminal case under consideration. The documents may contain information recorded both in writing and in another form.

The law includes pre-investigation inspection materials (explanations and other indications, acts of inventories, audits, certificates, acts of tax audits, conclusions of tax authorities), as well as those containing computer information, photographs and films, sound and video recordings received, requested or submitted in accordance with the procedure provided for in Article 122 of the CPC..

Documents, as evidence, must be attached to the case and kept in it for the entire duration of the case file. And if the seized and attached documents are required for current accounting, reporting and other legitimate purposes, they can be returned to their rightful owner or provided for temporary use, if possible without prejudice to the case, or copies of them can be transferred.

The documents submitted to the court session may be attached to the case by court order.

Attention should be paid to the fourth part of Article 120 of the CPC, according to which documents having the characteristics specified in Article 118 of the CPC are recognized as material evidence.

14. The Court does not need to spend time and effort to establish the circumstances listed in Article 114 of the CPC. The legislator names them as circumstances established without evidence, and provides an exhaustive list of them. These circumstances are considered to be established without evidence, unless otherwise proven through due process of law.

15. In accordance with article 125 of the CPC, each piece of evidence is subject to an assessment in terms of relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a criminal case.

Article 25 of the CPC states that a judge evaluates evidence according to his inner conviction, based on a comprehensive, complete and objective consideration of them in their entirety, guided by the law and conscience. When evaluating evidence, the court should also be guided by the explanations given in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated April 20, 2006 "On certain issues of evaluating evidence in criminal cases."

16. When assessing evidence, the court must necessarily take into account the provisions of Article 112 of the CPC, which specifies which factual data cannot be considered admissible as evidence. According to the general characteristic, factual data should be considered inadmissible as evidence if they were obtained in violation of the requirements of this Code, which, by depriving or restricting the legally guaranteed rights of participants in the process or violating other rules of criminal procedure during the investigation or trial of the case, affected or could affect the reliability of the factual data obtained.

The Supreme Court clarified in a regulatory ruling: "The court, taking into account that during the trial the evidence provided only by the parties to the prosecution and defense is examined, and in accordance with the requirements of the law on the court's preservation of objectivity and impartiality during the trial, must ensure the disclosure of protocols of investigative actions, expert opinions, protocols of testimony of victims, witnesses and other documents attached to the case, by the party that filed the request for this.

In the presence of jurors, procedural decisions are not subject to investigation - a decision to institute criminal proceedings, a decision to bring in an accused, as well as issues and petitions aimed at ensuring the conditions of the trial, such as the forcible bringing of victims, witnesses, challenges to participants in the process, issues related to preventive measures, and other legal issues that are not within the jurisdiction of the jurors and may cause them to be prejudiced against the defendant and other participants in the process. The statements of the defendants about the physical or mental influence exerted on them during the preliminary investigation, which affected the content of the evidence obtained, are not subject to consideration in the presence of jurors."

This should be strictly observed by the presiding judges when considering cases involving jurors.

In addition, the presiding judge must take into account the provisions of paragraph 13 of the regulatory decree, according to which the Supreme Court recalls that in accordance with "part three of Article 648 of the CPC, in court proceedings the issue of the admissibility of evidence is resolved without the participation of jurors.

Within the meaning of this rule, the parties inform the judge of the presence of their petitions of a legal nature, without disclosing their contents, to mention to the jurors the presence in the case of evidence excluded earlier by the court decision."

17. A judge, guided by articles 648 and 650 of the CPC, is obliged to take the necessary measures to exclude the possibility of familiarizing jurors with inadmissible evidence, as well as investigating issues outside their competence. If the examination of inadmissible evidence has taken place, then the issue of recognizing them as null and void, and their examination as invalid, is carried out in the absence of the jurors, and subsequently the contents of the decision are explained to them. The judge should do the same in the case when information is brought to the jury that is not related to the actual circumstances of the case, for example, information about the defendant's criminal record, about recognizing him as a chronic alcoholic or drug addict, etc.

If, during the court session, the defendant declares that illegal methods were used against him during the preliminary investigation (coercion to testify, torture), the judge, in the absence of jurors, examines the testimony of the defendant and interrogates the persons indicated by him. If the facts of the use of illegal investigative methods have not been confirmed, the court shall notify the jury of this.

If the facts of the use of illegal methods during the preliminary investigation are confirmed, the judge recognizes the evidence obtained in this way as inadmissible.

18. According to article 115 of the CPC, the testimony of a suspect or accused is information provided by them in writing or orally during an interrogation conducted during an inquiry or preliminary investigation in accordance with the procedure established by the CPC. At the same time, it is important not to forget that the defendant has the right (and not the obligation) to testify about the charges against him, as well as about other circumstances known to him that are relevant in the case, and evidence. Moreover, the defendant's admission of guilt in the commission of a crime can be used as the basis for the charge only if his guilt is confirmed by the totality of the evidence available in the case, which the court should keep in mind.

19. Article 380 of the CPC provides for the possibility of restricting the examination of evidence at a court hearing. According to this rule, the public prosecutor has the right to request that the examination of the evidence of the prosecution be limited to the evidence reviewed at the time of the initiation of the said petition. Article 650 of the CPC prohibits the application of this provision of the law when conducting judicial investigations in cases involving jurors. In such cases, the court, having listened to the opinions of the parties, has the right to grant this petition, but it has the right to leave it without satisfaction if the limitation of the examination of evidence may adversely affect the completeness, comprehensiveness and objectivity of establishing all the circumstances of the case. At the same time, the judge should also keep in mind that limiting the examination of evidence, even at the request of the public prosecutor himself, may entail that the prosecutor and the victim will be limited in providing evidence as a result. And in cases stipulated by law, this in itself is the basis for the cancellation of the verdict, so the chairman must be very careful when deciding to limit the examination of evidence. In addition, it should be borne in mind that jurors do not have the same professional legal knowledge as other participants in the process, and therefore it may be important for them when several persons testify to the same circumstance or several other evidence points to the same circumstance.

The law also grants the defense the right to refuse to examine evidence presented and attached to the case at the request of the defendant, the defense attorney, the defendant's legal representative, the civil defendant or his representative. Such a refusal is obligatory for the court.

20. When all the evidence available in the case and presented by the parties has been examined, the presiding judge asks the parties whether they wish to supplement the judicial investigation and what exactly. In the case of petitions to supplement the judicial investigation, the court discusses these petitions and resolves them.

After the petitions have been resolved and the necessary judicial actions have been performed, as well as in cases where petitions to supplement the judicial investigation have not been initiated or have been reasonably rejected by the court, the presiding judge shall declare the judicial investigation completed and proceed to judicial debate.

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases