Commentary on Article 57. Presiding Judge in a Case of the Criminal Procedure Code of the Republic of Kazakhstan
1. When a criminal case is considered by a panel of judges, the presiding judge shall be the chairman of the court, the chairman of the judicial panel, or one of the judges duly authorized to do so in accordance with the procedure established by law. A judge hearing a case individually shall be deemed to be the presiding judge.
2. The presiding judge directs the course of the court hearing, takes all measures to ensure a fair consideration of the criminal case and compliance with other requirements of this Code, as well as the proper conduct of all persons present at the court hearing.
3. The orders of the presiding judge during the court hearing shall be binding on all participants in the proceedings and other persons present in the courtroom.
The provision of Part 1 of Article 57 of the CPC concerning the presiding judge in a case means that this position is not identical to that of the chairman of the respective court or the chairman of a judicial panel of a higher court. In addition to performing the functions of a judge in a case in accordance with the procedure established by the CPC, the latter also perform a substantial volume of administrative activities within the respective court outside their procedural activities. For example, the chairman of a district court is a judge and, in addition to performing the duties of a judge: resolves matters concerning the organization of judicial proceedings in the court; exercises general supervision over the administrative office of the district court; conducts personal receptions of citizens; approves the work plan of the district court; organizes internships for candidates for judicial positions; ensures work aimed at combating corruption and complying with judicial ethics standards; issues orders; and exercises other powers provided for by law. In the event of the temporary absence of the chairman of a district court, the performance of his duties shall be assigned to one of the judges of that court by an order of the chairman of that court. In the absence of the chairman, as well as judges, in a district court, the performance of their duties shall be assigned to judges of another court by an order of the chairman of the regional court. In the event of early termination or expiration of the term of office of the chairman of a district court, the temporary performance of the chairman's duties shall be assigned to one of the judges of that court by an order of the chairman of the regional court (Article 9 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”).
The procedural status of the presiding judge in a case (who is, in fact, the head of the court hearing) has been elevated to the rank of one of the general conditions of the main court proceedings (Article 334 of the CPC) and is mandatory for all judges forming the panel of the court in a particular case, or for a judge hearing a case individually and acting in this capacity by virtue of the provisions of the CPC. Among the other functions of the presiding judge in the main court proceedings are maintaining its established procedure, ensuring order during the main court proceedings, and ensuring the proper quality of preparation of the minutes of the court hearing (Articles 345–349 of the CPC). For example, actions contrary to the orders of the presiding judge in a case, committed both by participants and non-participants in the proceedings (disruption of order in the courtroom, disobedience to the judge, and other manifestations of clear disrespect for the court), entail the application by the presiding judge of appropriate measures of criminal procedural liability (imposition of a monetary penalty, removal from the courtroom, and referral of materials to the prosecutor to decide whether to initiate a pre-trial investigation). For example, removal from the courtroom is permitted in respect of the defendant, the victim, any other participant in the proceedings, or any person, except for the prosecutor and defense counsel. A monetary penalty may not be imposed on the defendant or his lawyer participating as defense counsel. The court shall issue a ruling on the removal of a participant in the proceedings from the courtroom and the imposition of a monetary penalty (Parts 1 and 3 of Article 346 of the CPC).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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