Commentary to article 92. Withdrawal of the translator and the specialist The Criminal Procedure Code of the Republic of Kazakhstan

1 An interpreter and a specialist may not participate in criminal proceedings:

1) in the presence of any of the circumstances provided for in Article 87 of this Code;

2) if their incompetence is revealed.

2 The previous participation of a person as an interpreter or specialist is not a circumstance that precludes their further participation in the relevant capacity in the proceedings on this criminal case.

3 The issue of disqualification of an interpreter and a specialist is resolved by the body conducting the criminal proceedings.

1. The participation of an interpreter in the proceedings in the case follows from the requirements contained in Article 30 of the CPC, according to which persons participating in the case who do not speak or do not speak the language in which the proceedings are conducted are explained and provided with the right to make statements, give explanations and testimony, file petitions, bring complaints, get acquainted with the materials. to speak in court in their native language or another language that they speak; to use the services of an interpreter free of charge in accordance with the procedure established by this Code.

They are also provided with free translation into the language of criminal proceedings of the case materials they need, presented in another language. Persons participating in the judicial process are provided free of charge with the translation into the language of the proceedings of that part of the court proceedings that takes place in another language.

The bodies conducting the criminal proceedings are required to hand over to the participants in the proceedings the documents that, in accordance with the CPC, must be handed over to them, set out in the language of the proceedings. At the same time, for persons who do not speak the language of criminal proceedings, a certified copy of the document presented in the language chosen by these persons is attached.

In accordance with article 81 of the CPC, an interpreter is involved in the case precisely in cases where the suspect, the defendant, their defenders or the victim, the civil plaintiff, the civil defendant or their representatives, as well as witnesses and other participants in the process do not speak the language in which the proceedings are conducted, for the deaf and dumb, as well as to translate the written documents available in the file. By virtue of the right guaranteed by the Criminal Procedure law of persons participating in the case who do not have sufficient command of the language in which the proceedings are conducted to use their native language or another language, an interpreter in these cases is also involved in the case.

The procedural basis for the participation of a person in the case as an interpreter is the decision of the body conducting the criminal proceedings.

On the basis of the said resolution, a person who is not interested in the case and speaks the language required for translation is called in as an interpreter.

The commented article provides grounds for the unconditional removal of a person from participating in the case as an interpreter, therefore, the investigator, the inquirer, and the judge, when involving a specific person, must ensure that there are no such grounds in relation to this person.

The circumstances specified in article 87 of the CPC should be attributed to this procedural person, and if such circumstances exist, the person invited to participate in the case as an interpreter must recuse himself, and if he has not done so, he must be recused, or he must be removed from participation in the case on his own initiative. the person conducting the criminal proceedings.

A translator may also be challenged due to the fact that his incompetence has been revealed, i.e. lack of mastery or insufficient command of languages in order to carry out high-quality translation. The incompetence of a translator may be indicated by his lack of appropriate education in the study of languages, the translation of which is necessary, and if he has a document of education, but has shown a low level of knowledge of languages during the translation process.

The issue of disqualification of an interpreter is resolved by the body conducting the criminal process: at the pre–trial stages by the decision of the inquirer and investigator, during the consideration of the case by the court - by court order.

The previous participation of a person as an interpreter is not a circumstance that precludes his further participation in the relevant capacity in the proceedings in this criminal case, unless the circumstances specified in the article appear that prevent his participation.

In some cases, when collecting, researching and evaluating evidence, and using scientific and technical means in the course of procedural actions, there is a need for the participation of persons with special knowledge. Such persons are specialists involved in the case.

The procedural and legal status, rights and duties of a specialist are provided for in article 80 of the CPC. According to this rule, a person may be involved as a specialist to participate in criminal proceedings: a) who has the necessary special knowledge to assist in collecting, examining and evaluating evidence by clarifying issues within his competence to the participants in the process; b) who is not interested in the case.

When conducting investigative and other procedural actions, a doctor of the appropriate profile is involved as a specialist, and with the participation of minors, a teacher is also involved.

A specialist cannot participate in the case if there are the same circumstances that apply to the translator.

An employee of an authorized subdivision of a law enforcement agency or a special state body of the Republic of Kazakhstan may be involved as a specialist in the case to conduct research and give an opinion.

This provision of the law undermines confidence in the true independence of such a specialist from the criminal prosecution body, since he serves in the same body as the inquirer and investigator, and they have common senior officials whose authority includes carrying out procedural actions against them.

Let's compare: according to article 82 of the CPC, persons who may be dependent on law enforcement agencies include not only law enforcement officers and courts, but also students of special law schools who cannot participate in the case even as witnesses.

When a specialist, an employee of an authorized unit of a law enforcement agency or a special government agency, participates in the case, the participants in the process should carefully find out what official position the person serving in the law enforcement agency occupies, the scope of his powers, to whom he is directly subordinate in the service, whether it is related to the collection and consolidation of evidence, the disclosure of crimes, etc., in order to identify his competence, disinterest (or, conversely, interest) in the case and the permissibility of his participation in the case as a specialist.

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

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