Commentary on Article 52. Composition of the Court of the Criminal Procedure Code of the Republic of Kazakhstan

1. Criminal cases in courts of first instance shall be considered by a single judge, and in cases involving especially grave crimes, upon the motion of the accused, by a court with the participation of jurors, consisting of one judge and ten jurors, with the exception of cases involving:

1) murders committed under conditions of a state of emergency and during mass riots;

2) crimes against peace and security of mankind, against the foundations of the constitutional order and the security of the State;

3) terrorist and extremist crimes;

4) military crimes committed during wartime or in a combat situation;

5) crimes committed as part of a criminal group.

Crimes provided for in Article 125 (paragraph 1) of part three, Article 128 (paragraph 1) of part four, Article 132 (part five), Article 135 (paragraph 1) of part four, Articles 160, 163, 164 (part two), 168, and Article 380-1 (paragraph 6) of part two of the Criminal Code of the Republic of Kazakhstan shall also be considered, upon the motion of the accused, by a court with the participation of jurors, consisting of one judge and ten jurors.

2. Criminal cases shall be considered on appeal by a panel consisting of at least three judges of the judicial panel, whereas complaints and motions of prosecutors against judgments and rulings of courts in cases considered under the expedited procedure or by way of order proceedings, in cases involving criminal misdemeanours and minor crimes, on matters relating to the execution of a judgment, and against rulings of an investigating judge shall be considered by a single judge.

In the absence of the chairman of the appellate judicial panel due to a business trip, leave or illness, when the aforementioned cases are considered by a panel, the judge of the panel upon whom the chairman of the court has assigned the performance of the duties of the chairman of the appellate judicial panel shall preside.

3. Cases in the court of cassation shall be considered by a panel of an odd number of judges (at least three) of the Supreme Court of the Republic of Kazakhstan, presided over by the chairman of the judicial panel or one of the judges acting upon his or her instructions.

4. Cases on the grounds provided for in part four of Article 484 of this Code shall be considered by a panel consisting of an odd number of judges (at least seven), presided over by the Chairperson of the Supreme Court of the Republic of Kazakhstan or one of the judges acting upon his or her instructions.

5. The composition of the court when considering cases based on newly discovered circumstances shall be determined in accordance with the rules provided for in Article 504 of this Code.

6. Consideration of issues arising during the execution of a judgment and consideration of cases concerning the application of compulsory medical measures to persons who are legally insane shall be carried out by a single judge of the respective court.

7. Where, in a judicial panel, the number of judges is insufficient to ensure the collegial consideration of a case due to circumstances preventing them from participating in its consideration, the chairpersons of the Supreme Court of the Republic of Kazakhstan, the regional court and the court equated thereto shall have the right to involve judges from another judicial panel in the consideration of the case.

Footnote. Article 52 has been amended by the Laws of the Republic of Kazakhstan dated 7 November 2014 No. 248-V (shall enter into force on 1 January 2015); dated 31 October 2015 No. 378-V (shall enter into force on 1 January 2016); dated 11 July 2017 No. 91-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); dated 21 December 2017 No. 118-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); and dated 27 December 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).

For an understanding of the provisions of the commented article, it is important to distinguish between the levels of the judicial system, from district courts to the Supreme Court, as well as the judicial instances entrusted with the exercise of the function of administering justice in criminal cases. Thus, Article 52 of the CPC primarily determines the competence of judges of the relevant judicial instances to consider criminal cases.

Part 1 of Article 52 of the CPC allows criminal cases to be considered both by a single judge and by a panel of judges in courts of first instance (district courts, courts equated thereto and other courts). Thus, the basis for the collegial consideration of a criminal case upon a motion of the suspect or accused (a court with the participation of jurors) may primarily be the type of criminal punishment prescribed by criminal law for the commission of certain crimes (the death penalty or life imprisonment). In addition, the provision of part 1 of Article 52 establishes a separate list of criminal cases involving offences that may also be considered by a judge with the participation of ten jurors upon a motion of the suspect or accused. At the same time, this same provision identifies a group of cases involving crimes which, despite their particular danger, cannot be subject to consideration by a court with the participation of jurors. This is dictated by a certain position of the legislator aimed at ensuring the necessary impartiality of justice in this category of criminal cases, which can be ensured by a professional judge.

3\. Similarly, the composition of the appellate court (the regional court and the court equated thereto) may consist of either a single judge or a panel of judges (part 2 of Article 52 of the CPC).

Here, the basis for the collegial consideration of criminal cases in respect of which judicial acts were adopted by a court of first instance is the category of the criminal offence (grave and especially grave crimes). Accordingly, the single-judge procedure for reviewing judicial acts on appeal applies exclusively to criminal cases in which the main court proceedings were conducted under the expedited procedure or by way of order proceedings, to criminal cases involving criminal misdemeanours and minor crimes, as well as to court rulings issued during the execution of a judgment and rulings of an investigating judge, that is, to cases and judicial acts for the proper assessment of which the efforts of one competent judge of the appellate instance are sufficient.

This provision also specifically determines the circumstances in which the chairman of the appellate judicial panel may be replaced, for valid reasons, by another judge of that panel acting in the capacity of the acting chairman, with the knowledge and upon the instructions of the chairman of the court.

An exclusively collegial procedure for the consideration of criminal cases (at least three judges) is provided for at the level of the cassation instance, headed by the chairman of the judicial panel for criminal cases of the Supreme Court, who may also, where valid grounds preventing his presence at the workplace exist, be temporarily replaced by a judge of this judicial instance, with the duties of presiding judge in the case assigned to that judge (part 3 of Article 52 of the CPC).

With regard to the above commentaries, it should be noted that the provisions of parts 2–3 of Article 52 of the CPC exclude and reasonably limit the permanent presence of the chairman of the relevant judicial panel at its hearings. It is difficult to imagine the opposite.

The collegial composition of judges (at least seven judges) is objectively provided for in the provisions of Part 4 of Article 52 of the CPC, since the matter concerns the review of its own ruling by the Judicial Chamber for Criminal Cases of the Supreme Court and, essentially, the final judicial instance in determining the fate of an individual and a citizen. In this case, such hearings are conducted personally by the Chairperson of the Supreme Court (presiding over the case), with the participation of judges of this judicial chamber. Where circumstances arise that require the Chairperson's absence from the relevant court hearing, he may, for a certain period, be replaced, upon his instruction, by a judge of this chamber, with the duty of presiding over the case assigned to that judge. This composition has also been increased to seven judges because the case is subject to consideration upon the submission of the Chairperson of the Supreme Court or the protest of the Prosecutor General. This concerns their personal right, in exceptional circumstances, to apply to this judicial instance (see Part 4 of Article 484 and Part 2 of Article 485 of the CPC).

In general, the individual consideration of criminal cases (except in the Supreme Court) is characteristic of courts at the stage of reopening cases based on newly discovered circumstances (Part 5 of Article 52 of the CPC).

The law follows the same approach with regard to the individual consideration by a judge of the relevant court of matters related to the enforcement of judicial decisions and the necessity of applying compulsory medical measures to persons who are legally insane (Part 6 of Article 52 of the CPC).

The individual consideration by a court of cases and matters on the grounds provided for in Parts 5–6 of Article 52 of the CPC is primarily обусловлено their derivative nature in relation to cases considered by courts of first instance and other judicial instances, or the absence of grounds for criminal liability (cases involving the application of compulsory medical measures to persons who are legally insane).

The provisions of Part 7 of Article 52 of the CPC are organically connected with the rules governing the recusal of judges where the grounds specified in the CPC exist (Article 87 of the CPC) and ensure the full performance of the functions of criminal justice assigned to the relevant judicial chambers of the Supreme Court, regional courts and courts equated to them, through the involvement of judges from another judicial chamber.

In general, cases involving the collegial consideration of criminal cases enhance the objectivity of the resolution of criminal cases by a higher court, are aimed at preventing corruption within the judiciary and violations of the provisions of the CPC by higher courts, and also ensure the stability of judgments and rulings issued by courts of first instance.

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishovich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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