Judicial investigation in cases considered with the participation of jurors, the judicial investigation begins with the presentation by the public prosecutor of the essence of the charges brought against the defendant
Judicial investigation in cases of this category is conducted in compliance with the provisions of Chapter 42 of the CPC and the specifics provided for in Article 562 of the CPC. So, according to article 345 of the CPC, the judicial investigation begins with the presentation by the public prosecutor of the essence of the charges brought against the defendant. If he changes the charge to a less serious one or if he rejects part of the charge, the prosecutor is obliged to present to the court a new motivated wording of the charge in writing. In this case, if the victim does not insist on the previous charge, the court considers the case within the limits of the new charge. After the prosecutor has stated the charges, the presiding judge must find out from the defendant his attitude to this charge. To this end, the presiding judge, as indicated in article 346 of the CPC, interrogates the defendant whether he understands the charge, explains to him the essence of the charge and finds out if he wants to inform the court of his attitude to the charge. The law obliges the presiding judge to explain to the defendant that he is not bound by a confession or denial of guilt made during the preliminary investigation, is not obliged to answer the question of whether he admits his guilt or not, and that the defendant's refusal to answer cannot be interpreted to his detriment, that he has the right to motivate his answer and that his silence will be interpreted like not admitting his guilt. If a civil claim is filed in the case, the presiding judge must ask the defendant whether he recognizes (in full or in part) the civil claim brought against him. If the defendant gives an answer to this question, he must motivate him. The defendant's silence is interpreted as his non-recognition of the civil claim. The parties have the right to ask the defendant questions aimed at clarifying his position on the charges presented by the prosecutor and the civil claim brought against him. When conducting a judicial investigation, the court is guided by the principle of the immediacy and verbality of the trial, and takes into account that, in accordance with the law, the verdict of the court can be based only on the evidence that was examined at the court session.
Judicial investigation in cases considered with the participation of jurors, the judicial investigation begins with the presentation by the public prosecutor of the essence of the charges brought against the defendant
Therefore, in accordance with Article 311 of the CPC, all evidence in the case presented by the parties to the prosecution and defense is subject to direct investigation in court proceedings. The court must hear the testimony of the defendant, the victim, and witnesses, announce and examine expert opinions, inspect physical evidence, announce protocols and other documents, and perform other judicial actions to examine evidence in the presence of jurors and with their participation, except in cases provided for by the CPC. When examining evidence, the court must adhere to the procedure provided for in article 347 of the CPC. The prosecution is the first to present evidence. The procedure for examining the submitted evidence is determined by the court in agreement with the parties. The court issues a ruling on the establishment or modification of the procedure for examining evidence.Traditionally, the procedure for examining evidence is established from the interrogation of the defendant. However, when adopting such a procedure for examining evidence, the court must take into account the defendant's right to testify at any time during the judicial investigation. If the defendant agrees, the examination of evidence begins with verifying his testimony by questioning him, if he has stated that he will testify later, the court has no right to force him, and in such cases changes the procedure for examining evidence. When interrogating a defendant, the court must bear in mind that he has the right to be heard in court, but he is not obligated to give evidence to the court. Therefore, if the defendant refuses to testify in court on the charges, it is prohibited to force him to testify. According to the Constitution of the Republic of Kazakhstan and Article 27 of the CPC, no one is obliged to testify against himself, so the chairman explains to him the right to give or not to give evidence about the charges and other circumstances of the case, and that everything said by the defendant can be used against him. If the defendant has agreed to testify, he is questioned first by the defense attorney and the participants in the trial on the part of the defense, then by the public prosecutor and the participants in the trial on the part of the prosecution. The Chairman removes leading questions and questions that are not relevant to the case. The court asks the defendant questions after the interrogation by the parties, but clarifying questions can be asked at any time during the interrogation. If there are several defendants, then at the request of the parties or the initiative of the court, one defendant may be interrogated in the absence of another defendant, on which the court issues a resolution. In this case, the defendant, in whose absence it was decided to interrogate another defendant, is removed from the courtroom. After the defendant returns to the courtroom, the testimony entered in the minutes of the court session, given in his absence, is read out to him, and the opportunity is given to ask questions to the defendant questioned in his absence (Article 348 of the CPC).
The court has the right to announce the testimony of the defendant given by him during the pre-trial proceedings in the case, as well as to reproduce sound recordings, video recordings or film recordings of his testimony attached to the interrogation protocol in the cases provided for in Article 349 of the CPC: 1) if the defendant refuses to testify in court; 2) if the case is being considered in the absence of the defendant; 3) if there are significant contradictions between the testimony given in the trial and during the preliminary investigation. Reproduction of audio-video recordings and filming is not allowed without prior announcement of the testimony contained in the relevant protocol of interrogation or the protocol of the court session. The interrogation of the victim and witnesses must be carried out in compliance with the rules provided for in articles 350,351, 352 of the CPC. Based on the principle of immediacy, the disclosure of the testimony of the victim and witness, as well as the reproduction of audio-video recordings and filming of their interrogation, is allowed only in the presence of the circumstances specified in Article 353 of the CPC: 1) if there are significant contradictions between these statements and the testimony given by them in court; 2) if the victim or witness is absent from the court session for reasons that exclude the possibility of their appearance in court proceedings. In order to ensure the completeness, objectivity and comprehensiveness of the examination of evidence, the court, in accordance with art. 354 The CPC, at the request of the parties or on its own initiative, has the right to appoint an expert examination. The expert examination is conducted by the expert(s) who gave an opinion during the preliminary investigation, or another expert(s) appointed by the court. In the latter case, the presiding judge must inform who is supposed to be entrusted with the examination, after which, in the absence of petitions for the recusal and self-recusal of the said person, the court decides to involve him as an expert in the case without removing the court to the conference room. Further, the expert is explained his procedural powers, he is warned about criminal liability for knowingly giving a false conclusion, which he subscribes to.
The examination in court is carried out according to the rules set out in Chapter 32 of the CPC, taking into account the requirements of Article 354 of the CPC. The expert participating in the court session, with the permission of the presiding judge, has the right to participate in the investigation of circumstances related to the subject of the examination: to ask questions to the interrogated persons, to get acquainted with the materials of the criminal case, to participate in all judicial actions concerning the subject of the examination. After clarifying all the circumstances relevant to the case, the chairman invites the parties to submit written questions to the expert. The questions raised should be announced and the opinions of the participants in the trial should be heard on them. The parties have the right to submit objects and documents as objects of expert research. Excluding them from the list of such persons, the court is obliged to issue a reasoned decision. Having considered the issues and having heard the opinions of the parties on them, the court, by its decision, eliminates those of them that do not relate to the case or to the competence of the expert, formulates new questions. The person appointed as an expert is given a copy of the court's decision on the appointment of an expert examination and his rights and obligations provided for in article 83 of the CPC are explained. The court, having listened to the opinions of the parties, has the right to postpone the court session for the time necessary for conducting the study. The expert shall give a written opinion and announce it at a court hearing, after which he may be questioned according to the rules provided for in Article 355 of this Code. The expert's opinion is attached to the case.
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