Commentary to article 87. Challenge of a judge to an article of the Criminal Procedure Code of the Republic of Kazakhstan

1 A judge may not participate in the consideration of a case if he:

1) is not a judge to whose jurisdiction a criminal case is assigned in accordance with this Code;

2) participated in this criminal case as an investigating judge, considered complaints and protests against the decisions of the investigating judge;

3) is a victim in this case, a civil plaintiff, a civil defendant, has been called or may be called as a witness;

4) participated in the proceedings in this criminal case as an expert, specialist, translator, witness, secretary of the court session, inquirer, investigator, prosecutor, defender, legal representative of the suspect, accused, representative of the victim, civil plaintiff or civil defendant;

5) is a relative of the victim, the civil plaintiff, the civil defendant or their representatives, a relative of the suspect, the accused or his legal representative, a relative of the prosecutor, defender, investigator or inquirer, or an associate of any of the participants in the process;

6) if there are other circumstances giving grounds to believe that the judge is personally, directly or indirectly interested in the case.

2 The composition of the court considering a criminal case may not include persons related by kinship or other personal dependence relationships.

3 A judge who participated in the consideration of a criminal case in a court of first instance may not participate in the consideration of this case in a court of appeal and cassation instances or by way of supervision, as well as participate in a new hearing of the case in a court of first instance in the event of the annulment of a verdict or a decision to terminate the case decided with his participation.

4 A judge who participated in the consideration of a case in the court of appeal may not participate in the consideration of this case in the first and appellate instances after the cancellation of the appeal verdict, decisions taken with his participation, as well as during the consideration of the case in the cassation instance.

6 A judge who participated in the consideration of a case in a court of cassation instance may not participate in the consideration of this case in the first, appellate and cassation instances after the cancellation of the decision taken with his participation.

7 A judge who participated in the consideration of a case in previous judicial instances may not participate in the consideration of the same case in a supervisory instance. A judge who participated in the consideration of a case in a supervisory instance may not participate in the consideration of the same case in courts of lower instances.

8 A judge who participated in the consideration of a case in the court of first instance, appeal, cassation and supervisory instances may not participate in the consideration of the same case due to newly discovered circumstances.

9 A challenge must be filed when it becomes known about the circumstances precluding the judge's participation in the case at any stage of the criminal process.

10 The issue of the recusal of the judge, as well as the participants in the judicial proceedings to be recused, is resolved by the court in the consultation room with the issuance of a resolution.

11 A challenge filed with a judge is resolved by the other judges in the absence of the challenged person, who has the right to publicly explain his explanation regarding the challenge filed with him before the judges are removed to the conference room. A challenge filed against several judges or the entire court is resolved by the full court by a majority vote. If the votes are equal, the judge is considered withdrawn.

12 A challenge filed with an investigating judge authorizing petitions for the application of a preventive measure or the conduct of investigative actions is resolved by the same investigating judge alone with the issuance of a decision. A challenge filed to a judge considering a case in accordance with the first part of Article 52 of this Code alone shall be resolved by the chairman of this court or another judge of this court, and in their absence – by a judge of a higher court. If the application for dismissal is satisfied, the criminal case, complaint or petition is transferred to another judge in accordance with the established procedure.

13 The decision to reject or satisfy the challenge is not subject to appeal (protest). Arguments about disagreement with the decision may be included in appeals, cassation or supervisory appeals.

The first part of this article lists the grounds on which a judge cannot participate in the consideration of a criminal case.

The first of them is related to the mandatory observance of the requirements of the Criminal Procedure law on the consideration of cases by the judge of the court that has jurisdiction over this case. Compliance with this requirement of the law is mandatory, since there is a constitutional prohibition on changing jurisdiction without the consent of a person, as well as its non-compliance in accordance with paragraph 2) the third part of Article 436 of this Code entails the unconditional cancellation of a judicial act as ordered by an illegal court.

In order to ensure the legality of the composition of the court, the judge, one of the first questions, finds out whether the case is within the jurisdiction of this court, guided by the provisions of Articles 306-315 of this Code. If the case is not within the jurisdiction of this court, then it cannot be considered by a judge of this court, since he is not a member of the court that has jurisdiction over the case. In such cases, the judge, in accordance with art. 321 of this Code, conducts a preliminary hearing and, in compliance with the requirements of Article 326 of this Code, issues a resolution on sending the case to the court that has jurisdiction over it. A motion to transfer a case from this court to another court, which has jurisdiction over it, may also come from the participants in the process. Such petitions are considered during the preliminary hearing of the case.

The question of the jurisdiction of a case may arise after the main trial has been scheduled and is being conducted. In such cases, the referral of the case to the jurisdiction or its retention in the proceedings of this court is permitted by the court, taking into account the requirements of art. 316 of this Code.

A new feature of the criminal procedure legislation is the court's obligation to explain to representatives of minor defendants and victims the possibility of requesting the transfer of a case under the jurisdiction of a specialized inter-district juvenile court to another court. Such petitions are considered by a judge of the specialized inter-district juvenile court during a preliminary hearing. And if they are stated in the main court proceedings, by the court considering the case. In the latter case, these representatives may file such petitions only in the preparatory part of the main trial. The court makes a decision based on the requirements of Article 317 of the CPC. In the absence of the grounds specified in the law for changing the jurisdiction of the case and transferring it to another court, the case is subject to consideration in a specialized inter-district juvenile court.

The grounds specified in paragraphs 2)-4) of the first part of the commented article, which exclude a judge from participating in the consideration of a case, are related to the principle that it is unacceptable for the same person to perform the procedural roles of other participants in the proceedings, even at different stages of the criminal process. These grounds are dictated by the principle specified in Article 23 of this Code on the separation of the functions of prosecution, defense and trial from each other and their implementation by various bodies and officials.

In this regard, the investigating judge who resolved the issues within his jurisdiction during the pre-trial proceedings, as well as the judge of the regional or equivalent court who considered complaints or protests against the decisions of the investigating judge, is not entitled to consider the same cases on the merits. This prohibition is based on the fact that these judges, when considering issues of authorizing preventive measures, complaints about the actions (inaction) of the inquirer, investigator, prosecutor, and other violations of the rule of law during the proceedings, may develop a prejudice about the guilt of the defendant, the qualification of a criminal offense, the admissibility and reliability of evidence, etc. issues to be resolved by the court of first and subsequent instances.

A judge has no right to consider a criminal case if he is a victim, a civil plaintiff, or a civil defendant in this case, has been called or may be called as a witness. On the basis of this prohibition, during the consideration of a criminal case, the judge cannot be presented with the function of bringing to justice persons who have shown disrespect for the court or who fail to perform their procedural duties properly, because The judge is a witness to the commission of an offense by the relevant persons at a court hearing, and in some such cases, the judge may be recognized as a victim.

The legislator specifically indicates that a judge who participated in the proceedings in this criminal case as an expert, specialist, translator, interpreter, court session secretary, inquirer, investigator, prosecutor, defender, legal representative of the suspect, accused, representative of the victim, civil plaintiff or civil defendant, witness, has no right to consider it. essentially. In these cases, the judge must personally recuse himself, and if he is not recused, the judge must be removed from participation in the proceedings on the basis of the recusal filed against him. The law provides for the elimination of the judge from participation in the case, since his previous participation in the case in another capacity is indispensable.

The prohibitions specified in this article also apply to the investigating judge.

Paragraph 5) of the first part of this article states that a judge has no right to consider a case if he is a relative of the victim, the civil plaintiff, the civil defendant or their representatives, a relative of the suspect, the accused or his legal representative, a relative of the prosecutor, the defender, the investigator or the inquirer, or a relative of any of the participants in the process.

The degree of kinship of a judge with a participant in the proceedings is not limited to the circle of close relatives, the list of which is provided for in paragraph 10) of Article 7 of this Code. The participation in the case of other relatives listed in paragraph 50) of Article 7 of the CPC, and even relatives, is a circumstance that prevents the judge from considering the case.

The list of circumstances that make it impossible for a given judge to consider a case is not exhaustive. Paragraph 6) of the first part of this article states that if there are other circumstances giving grounds to believe that the judge is personally, directly or indirectly interested in the case, he is subject to removal from consideration of the case. When a challenge is filed against a judge on the grounds of his personal interest in the outcome of the case, the participant in the proceedings who filed the challenge is obliged to provide evidence confirming his argument about doubting the impartiality of the judge, and the judge to whom the challenge is filed is obliged to provide appropriate explanations.

Part two states that the court considering the case may not include persons related to each other by kinship or other personal dependence. This rule applies to cases of collegial review of the case. It seems that when establishing family ties that entail the removal of a judge from participation in a case, the range of persons is much broader than the list of close relatives. Marital relations, including de facto marital relations, although not related, also serve as grounds for challenging one of the judges. The existence of family ties is a serious reason to doubt the objectivity and impartiality of a court composed of persons related to each other by kinship or other relationships of personal dependence.

If the facts of kinship or other personal dependence of a judge on other judges who are members of the court are revealed, the judge must recuse himself, and if he has not recused himself, the participants in the process who have become aware of these circumstances must immediately recuse themselves.

The prohibition on the participation of judges in the consideration of the same case in different judicial instances is contained in part three of this article and it is dictated by the fact that the judge considering the case must be independent, not bound by anyone, including his own opinion when making a decision. If a judge has already expressed his opinion on a case once during its consideration in the first instance, he will be unwittingly bound by his opinion, which may lead to his bias when considering the case in subsequent judicial instances.

4-7. For similar reasons, parts four, five, six, and seven of this article establish prohibitions on the participation of the same judge in the same case in different judicial instances.

Thus, a judge who participated in the consideration of a case in the court of cassation instance cannot participate in the consideration of this case in the first, appellate and cassation instances after the cancellation of the decision taken with his participation. A judge who participated in the consideration of a case in previous judicial instances may not participate in the consideration of the same case in a supervisory instance. A judge who participated in the consideration of a case in a supervisory instance may not participate in the consideration of the same case in courts of lower instances.

A judge who participated in the consideration of a case in the court of first instance, appeal, cassation and supervisory instances may not participate in the consideration of the same case due to newly discovered circumstances.

Due to the new amendment provided for in the new version of the CPC, on making submissions by the Chairman of the Supreme Court and protests by the Prosecutor General to the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan, judges who previously considered the case in the same court may not be part of the board considering these submissions and protests.

8. Participants in the process are obliged to challenge the judge immediately after they become aware of the circumstances preventing the judge from participating in the consideration of the case. A challenge may be filed at any stage of the criminal process. The person who filed the challenge is obliged to indicate on which of the grounds provided for in the law the judge, in his opinion, should be dismissed. Since the law clearly defines the grounds that exclude a judge from participating in the consideration of a case, an application for unmotivated challenges is not allowed. It is not allowed for the parties to conceal the circumstances known to them, entailing the removal of the judge from participation in the case. The behavior of a participant in the process who has failed to fulfill the obligation to promptly challenge a judge may be considered as improper performance of his procedural duties and entail the measures of responsibility provided for by law.

But in any case, regardless of the application for recusals or challenges and decisions on them, the consideration of the case by a judge who, in the presence of appropriate circumstances, was to be eliminated from participation in the case, in accordance with paragraph 2) of the third part of Article 436 of the CPC, entails the unconditional cancellation of the judicial act rendered with his participation, as decided by an illegal composition of the court.

The issue of recusal of the judge, as well as the participants in the trial, is one of the issues considered in the main trial. In accordance with the provisions of part nine of this Article and part two of Article 344 of this Code, a motion for recusal, after hearing the opinions of the participants in the proceedings on it, is resolved by the court in the conference room and the decision on it is made in the form of a separate document, called a resolution, which must be motivated. In particular, the decision should indicate which participant in the process and to whom the challenge was filed, what grounds for the challenge were given, whether they are provided for by law, the explanation of the judge, the relevant participant in the process regarding the challenge, the reasons given by the court in support of the decision to challenge them or to dismiss the petition. After the court leaves the conference room, the decision is immediately announced and attached to the case file, which is recorded in the minutes of the court session.

Although article 321 of the CPC does not specify that in the preparatory part of the preliminary hearing of the case, challenges may be filed against the judge and other participants in the process, however, the provision of Article 87 of the CPC, establishing the grounds for the challenge, does not relate to the specific stage of the case in which the challenge may be filed. According to the general rules provided for in paragraph eight of this article, a motion for recusal may be filed at any stage of the criminal process, including during the preliminary hearing of the case, and is considered in accordance with the procedure provided for in this article.

10-11. Parts 10 and 11 of this article specify by whom the challenges submitted to the judge are being considered. During the collegial consideration of a case, a challenge filed by one of the judges is resolved by the other judges in the absence of the challenged one. Before the judges are removed to the conference room, the dismissed judge has the right to publicly state his explanation regarding the challenge filed against him. In this case, the judge is considered to be dismissed both when all judges vote for his dismissal, and when opposing opinions are equal. If a challenge is filed against several judges or the entire composition of the court, it is considered and resolved by the full court with a majority decision. Those judges who have been challenged also take part in the voting. If the votes are equal, the judge is considered withdrawn. For example, the court consists of three judges, two of whom have been challenged. The issue of granting or rejecting a motion for recusal is considered by all three judges, and it is sufficient for two of them to agree in order for an appropriate decision to be made. Judges may not abstain from voting.

If the case is considered by a judge alone, the challenge filed against him is resolved by the chairman of this court or, on his instructions, by another judge of this court, and in case of their absence, by a judge of a higher court. If the challenge is refused, the same judge continues to consider the case, but if the request for challenge is satisfied, the criminal case, complaint or petition pending before this judge will be transferred to another judge in accordance with the established procedure. In this case, the consideration of the case may be postponed for the time necessary for the organization of its consideration by the legal composition of the court.

The investigating judge considers the issues referred to his competence individually. The legislator provides that the challenge submitted to him is not considered by the chairman of the court or another judge of this court, but by the investigating judge himself, and issues an appropriate resolution in the conference room. The legislator provides for such an exception to the general rule due to the fact that the investigating judge must consider some issues in a matter of hours, therefore, if the trial is postponed (suspended), it will take a long time for another judge or the chairman of the court to consider his challenge. Meanwhile, by the time a decision is made on the motion to dismiss the investigating judge, the period of detention of a person without court approval may have expired and he must be released from custody immediately, which may negatively affect the possibility of achieving the goals of the criminal process.

When making a decision on a challenge, the investigating judge must take into account that an unjustified rejection of the challenge will lead to the cancellation of his decision on the issue under consideration. In addition, failure by an investigating judge to recuse himself in the presence of circumstances known to him that prevent the consideration of materials in his production may be considered as a gross violation of the law, regarded as a clear interest in decision-making, and may entail liability for this.

It is noteworthy that the issue of recusal of a judge by the participants of the trial may be raised repeatedly, including both on new grounds and on the same ones, but with new arguments. The refusal to satisfy the petition of one participant in the process for the recusal of a judge is not an obstacle to the recusal application by other participants in the process to the same judge on the same or other grounds.

Each time, applications for challenges are subject to immediate consideration.

In the final part of the commented article, it is indicated that the decision made on applications for recusal of a judge is not subject to separate appeal and protest. If, nevertheless, the parties do not agree with the decision taken, they have the right to include their arguments in the appeal, cassation appeal or in the petition for supervisory review of the case. When considering a case in each court instance, a judicial act must be declared illegal and annulled if a judge who is subject to recusal in accordance with the law participated in its adoption.

For recusals in cases involving jurors and their removal from participation in the case, see the commentary to the articles 636, 639, 641, 642, 643, 645, 647 of this Code.

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

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