Commentary to article 86. Challenges and petitions for exclusion from participation and exemption from participation in criminal proceedings The Criminal Procedure Code of the Republic of Kazakhstan
If there are circumstances precluding their participation in the criminal proceedings, the judge, prosecutor, investigator, inquirer, defender, representative of the victim (private prosecutor), civil plaintiff, civil defendant, understood, secretary of the court session, bailiff, translator, expert, specialist must withdraw from participation in the criminal proceedings or they must be challenged by the participants in the criminal process.
The body conducting the criminal proceedings has the right, within the limits of its competence, to resolve the declared challenges and petitions for removal from the proceedings in the case or, if circumstances are found that exclude the participation of a person in the criminal proceedings, to remove him from participation on his own initiative with the issuance of an appropriate resolution. If at the same time as the recusal of the person authorized to resolve challenges against other participants in the process, other participants in the process are challenged, then the issue of recusal of this person is resolved first.
In the event that several persons are excluded from simultaneous participation in criminal proceedings due to their family relations or other personal dependence relationships, persons who later acquired the position of a participant in the process should be eliminated from the criminal proceedings. If persons connected by kinship or other personal dependence relationships find themselves in the court, the person chosen by the presiding judge is subject to removal from participation in the criminal case proceedings.
The secretary of the court session, bailiff, translator, specialist, expert, whose participation in the criminal process is not excluded by any circumstances provided for by this Code, may, at their request, be exempted from such participation by the body conducting the criminal process, due to the presence of valid reasons preventing them from performing their procedural functions.
1. By specifying in the first part of the commented article a list of persons who, in the presence of circumstances provided for by law, are not entitled to participate in criminal proceedings, the legislator thereby ensures the implementation of the principle of independence and impartiality of judges in the administration of justice, the objectivity and impartiality of persons conducting pre-trial proceedings (inquirers, investigators, prosecutors), as well as qualified defense and representation, the legality of legal proceedings, and the admissibility of evidence.
The need for legislative consolidation of these guarantees follows from the provisions of the Constitution of the Republic of Kazakhstan[1] and the International Covenant on Civil and Political Rights[2], which guarantee everyone the right to a fair trial by a competent, independent and impartial court established by law when considering any criminal charge against them.
Of significant importance is the provision that each of the listed persons, without waiting for someone to challenge him, is obliged, first of all, personally, if there are grounds provided for by law, to withdraw from participation in the criminal proceedings. A person's self-recusal indicates his objectivity and impartiality, commitment to strict observance of the principle of legality when participating in criminal proceedings. If self-recusal has not been filed, then the relevant person must be removed from participation in the case on the basis of recusal at the request of the participants in the process.
2. Part Two specifies by whom applications for challenges are resolved. First of all, the powers are presented to the body conducting the criminal process, i.e. to the relevant persons of the bodies in charge of the case during the pre-trial proceedings and during the judicial proceedings. A challenge may be filed simultaneously both to the person conducting the proceedings and to other participants in the process. In such cases, the second part of this article refers to the order of consideration of applications for recusal: first of all, the issue of recusal of the person authorized to resolve challenges against other participants is considered, then other challenges are considered. When a request for the recusal of a person authorized to resolve challenges against other participants in the process is granted, this person is eliminated first of all, and requests for the recusal of other participants in the process are resolved by another person who entered the process in place of the withdrawn one.
A challenge may be filed to one or several persons at once on the grounds of their being in a family relationship. In such cases, the legislator provides for the possibility of eliminating only one (some) of them while leaving the other, taking into account their order of entry into the process: those who later acquired the status of a participant in the process are eliminated. For example, a lawyer has been involved in a case since the start of the proceedings, and later his relative is involved as a witness. In this case, due to kinship relations, the assignment to the understood is satisfied.
A person who is in another personal dependence (for example, official dependence) on other participants in the process, as well as who is in friendly or, conversely, hostile relations with any of them, is subject to recusal in the same manner.
This provision also clarifies that if there are persons in the court who are related to each other by kinship or other personal dependence, one of them is excluded from participating in the case at the choice of the presiding judge. If the chairman of the case is related to any of the judges who are part of the court, the judge, and not the chairman, is eliminated.
The fourth part of the commented article indicates the possibility of exemption from participation in the criminal proceedings of the secretary of the court session, bailiff, translator, specialist, expert. The reason for their release from participation in the criminal process may be their personal request addressed to the body (person) conducting the criminal process, and the grounds for granting the request are valid reasons that prevent them from performing their procedural functions (for example, illness, the need to provide care for disabled dependents, etc.). The decision on exemption from participation in the criminal process is made by the person conducting the proceedings at the appropriate stage of the criminal process. The release of these persons for valid reasons is not equivalent to their removal from participation in criminal proceedings as a result of recusal. It is possible to combine the personal request of these persons for exemption from participation in the case due to any valid reasons with their stated challenges. In such cases, the personal request of the person is considered first, and then, if the request is left without satisfaction, the request for dismissal of the person is considered.
[1] Article 77 of the Constitution of the Republic of Kazakhstan (adopted at the republican referendum on August 30, 1995)
[2] See: article 14 of the ICCPR (adopted by General Assembly resolution 2200 A (XXI) of December 16, 1966)
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
Code of Criminal Procedure, Criminal Code, Comments to the Code of Criminal Procedure, Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan
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