Commentary to article 657. Failure of a juror to fulfill his duties, as well as non-compliance with restrictions related to the consideration of a case in court proceedings  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Failure by a juror to fulfill his duties, as well as non-compliance with restrictions related to the consideration of a case in court proceedings established by the laws of the Republic of Kazakhstan, –

     they impose a fine on individuals in the amount of ten monthly calculation indices.

     2. The same actions that led to the suspension of the juror from further participation in the consideration of the case, –

     they impose a fine on individuals in the amount of two hundred monthly calculation indices.

     Part 1. The participation of jurors in the judicial process is regulated by Article 75 of the Constitution of the Republic of Kazakhstan, the CPC, the Law of the Republic of Kazakhstan "On Jurors" and other regulatory legal acts.

     The general object of the offense is the established procedure for ensuring the functioning of public authorities.

     The generic object of the offense is the social and legal relations that arise as a result of a juror's failure to fulfill the duties assigned to him or failure to comply with restrictions.

     A citizen of the Republic of Kazakhstan acquires the status of a juror after attracting him as a candidate for the jury, conducting the selection procedure and taking the oath.

     In accordance with paragraph 1 of Article 1 of the Law of the Republic of Kazakhstan "On Jurors", a juror is a citizen of the Republic of Kazakhstan who is called upon to participate in the consideration of a criminal case by the court in accordance with the procedure established by law and has taken the oath.

     The commented article is a reference to the Law of the Republic of Kazakhstan "On Jurors", which contains a norm defining the rights, duties of a juror and restrictions on actions related to the consideration of a case (art. 13).

     In accordance with Part 1 of Article 647 of the CPC, the presiding judge explains to the jurors their rights, duties and restrictions in actions related to the consideration of the case, as well as warns about the consequences of violating duties and non-compliance with restrictions.

     The objective side of the offense is characterized by the unlawful actions of the jurors.

     The disposition of part 1 of the article provides for two facts: non-fulfillment by the juror of his duties and non-observance of restrictions related to the consideration of the case in court proceedings.

     This is how the duties of a juror include:

     1) observe the order in the court session and obey the lawful orders of the presiding judge;

     2) appear at the time specified by the court to perform the duties of a juror, as well as to continue the trial if a break is announced in the court session or the hearing of the case is postponed.;

     3) if it is impossible to appear in court, notify the presiding judge in advance of the reasons for the non-appearance.

     First, the observance of order in the court session is a general requirement for all participants in the judicial process. The trial of the case must take place in conditions that ensure the normal operation of the court and the safety of the participants in the process and other persons present in the courtroom. The need to maintain order in the courtroom is also stipulated in the norms of the Administrative Code, according to which persons involved in the case, as well as citizens present in the courtroom, are required to maintain order in the courtroom.

     As Judge Sharapatova G.M. notes, the measures applied to violators of order in the court session include a warning, removal from the courtroom. However, a juror, as a person who directly administers justice, cannot be removed from the courtroom, therefore he will be liable in accordance with this article.

     Secondly, to appear at the time specified by the court to perform the duties of a juror. This duty is imposed on jurors to save time and money in the administration of justice.

     Third, notify the presiding judge, in cases where the juror is unable to attend the meeting, indicating specific reasons. Non-attendance at the meeting is possible only for valid reasons. If the juror notifies the presiding judge in advance, the judge will have time to replace him with a substitute juror.  

     The restrictions related to the performance of the functions of a juror include:

     1) to leave the courtroom during the hearing of the case – such a prohibition is established so that the juror can receive complete and comprehensive information on the case under consideration, as well as to avoid influencing the juror.;

     2) to come into contact with persons outside the court during the hearing of the case without the permission of the presiding judge – such a ban is established in order to prevent influencing the juror and changing his position on the criminal case. A juror may only come into contact with persons who are members of the court, which, in accordance with Part 1 of Article 52 of the CPC, include judges and jurors.;

     3) to collect information during the trial of the case outside the court session, i.e. the juror should not independently make inquiries about the accused, study his behavior, interview other persons. By virtue of part six of Article 650 of the CPC, data on the identity of the defendant are examined with the participation of jurors only to the extent that they are necessary to establish certain elements of the crime of which he is accused. With the participation of jurors, the facts of a previous criminal record, as well as other data characterizing the defendant, which may cause their prejudice, are not investigated.;

     4) disclose information about the circumstances that became known to him in connection with his participation in a closed court session, as well as violate the secrecy of the conference room – in accordance with Part 1 of art. 29 of the CPC, closed court proceedings are permitted by reasoned court order in cases of juvenile delinquency, sexual offences and other cases in order to prevent the disclosure of information about intimate aspects of the lives of the persons involved in the case, as well as in cases where this is required by the interests of the safety of the victim, witness or other persons involved in the case, as well as their family members or close relatives. After the end of the debate and the formulation of questions, the judge and the main jurors retire to the deliberation room for sentencing. After being removed to the deliberation room, neither the judge nor the jurors have the right to leave for other cases, give interviews, speak in the media, etc. During the discussion, the juror may also become aware of information that is not subject to dissemination.

     According to the article under study, the subject will be special, that is, only a juror can be held accountable. Citizens of the Republic of Kazakhstan who meet the requirements of Article 10 of the Law of the Republic of Kazakhstan "On Jurors" may be jurors.

     The subjective side of the offense provided for in this article may be expressed either in the form of intent or through negligence.

     According to part 2 of the commented article, the qualifying feature is the removal of the juror from further participation in the consideration of the case.

     In accordance with article 645 of the CPC, any juror at any stage of the case may be suspended from further participation in the case if the restrictions established by law are not observed. The removal of a juror is carried out by the presiding judge in the presence of the parties, which is recorded in the minutes of the court session.  

     The legislator does not specify specific cases of suspension of a juror from participation in the consideration of a case, which, in our opinion, in practice may not be correctly applied by the presiding officers. Judicial practice includes such violations: telephone conversations between jurors in the conference room; expressing their opinion on the case before being removed to the conference room; examination by jurors of the materials of the criminal case outside the court session, etc.

     There are several views among scientists on this issue. According to A. Zobov, the fact of communication with persons who are not members of the court regarding the circumstances of the criminal case under consideration is "an unconditional basis for removing the juror from further participation in the case, and perhaps for overturning the verdict." One can also agree with the point of view of R. Dotsina, who spoke even more categorically: "I think there is no need to talk in detail about such a violation of the criminal process as the failure of the jury not to talk to outsiders (not participants in the case) about its details. It is obvious that violating this prohibition not only makes the juror biased, but also goes against the principle of the adversarial nature of the parties, proclaimed by the CPC.

     For this offense, a protocol on an administrative offense is drawn up by bailiffs and other court staff authorized by the chairman of the court or the chairman of the court session (paragraph 57 of part 1 of Article 804). Upon learning of the fact of violation of obligations by the jurors or non-fulfillment of restrictions, the presiding judge makes a note in the minutes of the court session and determines the court official who must collect the material, draw up the protocol and submit it for consideration to the administrative court.

     The consideration of the case belongs to the jurisdiction of judges of specialized district and equivalent administrative courts. For such an offense, Part 1 provides for a fine of ten MCI.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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