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Comments to article 39. Grounds for recusal (self-recusal) of the prosecutor, expert, specialist, translator, secretary of the court session of the Civil Procedure Code of the Republic of Kazakhstan
1. The grounds for recusal (self-recusal) specified in subitems 2), 3) of the first part of Article 38 of this Code shall also apply to the prosecutor, the secretary of the court session, a specialist, an interpreter, and an expert participating in the court session.2. An expert, specialist, translator, in addition, may not participate in the court session during the consideration and resolution of the case by the court, if:1) he is or was in official or other dependence on the persons participating in the case or their representatives; 2) he carried out an audit or audit, the results of which served as the basis for applying to the court or are used in the consideration of this civil case; 3) his incompetence was discovered, including clarifying the circumstances relevant for business, it goes beyond the scope of his special knowledge.3. The participation of the prosecutor, specialist, translator, and secretary of the court session in the court session during the previous consideration and resolution of the case by the court as prosecutor, specialist, translator, and secretary of the court session, respectively, is not a ground for their recusal. The previous participation of a person in the case as an expert is not a circumstance precluding the assignment of an additional expert examination in the case, except in cases when it is reappointed after the expert examination conducted with his participation.1. The norms contained in subitems 2) and 3) of the first part of Article 38 of the CPC as grounds for challenging a judge also apply to the prosecutor, expert, specialist, translator, secretary of the court session.2. An expert, a specialist, an interpreter, and the secretary of a court session are persons who assist in the administration of justice. Their procedural situation is characterized by a lack of legal interest in the outcome of the case. Therefore, a prerequisite for participation in the process is the absence of personal, direct and indirect interest for them. If there is such or other interest, these persons are subject to recusal.If it is discovered that the expert or specialist involved in the case was previously in official or other dependence on any of the participants in the process or their representatives, they will not be able to participate in the consideration of the case.Is the relationship between the secretary of the court session, the expert, the specialist and the translator the basis for their recusal? It is necessary to agree with the opinion that the existence of kinship relations between these persons cannot serve as a basis for recusal, since these relations do not correlate with the content and purpose of the institute of recusals and these persons do not have an independent legal interest in the case.If the expert acts as an auditor, and the materials of the audit that he conducts are the basis for filing a claim in the case under consideration, then he is subject to recusal on the basis of subparagraph 3) of the first part of Article 38 of the CPC.By analogy, the norms should be applied, establishing the grounds for challenging an incompetent specialist and translator.
3. Repeated participation of the prosecutor, the expert, the specialist, the translator, the secretary of court session on business is allowed and this circumstance is not the reason for their withdrawal.The previous participation of a person in the case as an expert is not a circumstance precluding the assignment of an additional expert examination in the case, except in cases when it is reappointed after the expert examination conducted with his participation.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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