Commentary to article 88. Challenging the prosecutor The Criminal Procedure Code of the Republic of Kazakhstan

1 A prosecutor may not participate in criminal proceedings in the presence of any of the circumstances provided for in Article 87 of this Code.

2 The prosecutor's participation in the pre-trial investigation, as well as his support of the charges in court, are not an obstacle to his further participation in this criminal case.

3 The issue of challenging the prosecutor during the pre–trial investigation is resolved by a higher prosecutor, and during the proceedings in court - by the court considering the case.

1. The prosecutor is required to be objective and impartial in the conduct of a criminal case and in the exercise of the procedural powers assigned to him. In this regard, the prosecutor should not be personally interested in making decisions or in resolving a criminal case. In the first part of this article, reference is made to Article 87 of this Code, stating that the prosecutor cannot participate in the consideration of the case in the presence of any of the circumstances specified therein.

2. Part two provides for an exception, according to which circumstances related to the performance of supervisory functions during pre-trial proceedings, participation in court sessions conducted by an investigating judge, and the maintenance of charges in court are not an obstacle to the prosecutor's further participation in this criminal case.

3. Part Three provides for the procedure for considering challenges submitted to the prosecutor. During the pre-trial investigation, a decision on whether to grant or reject a challenge is made by a higher prosecutor. Until a decision is made on the challenge, the prosecutor is not excluded from participating in the case. Considering the validity of the challenge filed with the prosecutor, the higher prosecutor must take into account that participation in the proceedings of the prosecutor to be challenged, in accordance with paragraphs 2)-3) of the first part of Article 112 of the CPC entails recognition of the materials obtained with his participation as inadmissible evidence. The prosecutor's decision to disqualify or dismiss a motion for disqualification must be lawful and justified. This decision may be appealed to a higher prosecutor or an investigating judge in accordance with the procedure provided for in Articles 105-106 of this Code. The dismissed prosecutor may appeal the decision of the prosecutor who made the decision to a prosecutor superior to him.

If the prosecutor is challenged during the consideration of issues by the investigating judge or during the preliminary hearing of the case, the main trial, the decision is made by the appropriate judges. Their decision to challenge is not subject to a separate appeal, but disagreement with the court's decision may be included in the complaint filed against the verdict or court order.

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

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