In its normative ruling No. 63-NP dated January 29, 2025, the Constitutional Court upheld the constitutionality of Article 645 of the Criminal Procedure Code of the Republic of Kazakhstan, which regulates the replacement of jurors in cases where one of them is found unable to participate in a court session. Previously, we published the opinion of a prominent Russian expert on this matter.
The applicant challenged Part 4 of Article 645 of the Criminal Procedure Code, which states that if a juror becomes unable to participate after the jury has retired to the deliberation room, the presiding judge and jurors must return to the courtroom, where the presiding judge replaces the absent juror with an alternate. The jury then withdraws again to continue deliberations. If no alternates remain, the presiding judge must declare the trial invalid and revert to the preliminary jury selection stage, as stipulated in Article 638 of the Criminal Procedure Code.
The applicant also contested Part 5 of Article 645, which allows for the removal of any juror at any stage of the trial if they fail to comply with the restrictions established in Part 4 of Article 647 of the Criminal Procedure Code. Additionally, the applicant argued that Part 6 of Article 645, which permits the presiding judge to remove a juror in the presence of the parties with a record made in the trial protocol but without issuing a separate ruling, contradicts the Constitution.
The applicant asserted that the current legislation, particularly Parts 4 and 5 of Article 645, does not clearly define the final moment at which juror replacement is permissible in the deliberation room. This grants judges broad discretionary powers, leading to an imbalance between jurors and the judge, in violation of the equality principle guaranteed by the Law of the Republic of Kazakhstan “On Jurors” dated January 16, 2006, and the Criminal Procedure Code. Furthermore, the absence of a right to appeal the presiding judge’s procedural decision on a juror’s removal, which is recorded only in the trial protocol, limits the right to judicial protection, as it directly impacts the trial’s outcome.
After reviewing the applicant’s arguments, the Constitutional Court ruled that the provisions of Article 645 of the Criminal Procedure Code comply with the Constitution of the Republic of Kazakhstan. However, the Court also recommended amendments to the Code to minimize the need for dissolving a jury panel when replacing the main panel. One proposed solution is to increase the number of alternate jurors, ensuring trial stability and reducing the risk of violating the right to a fair trial. Additionally, the Court highlighted existing legal gaps that hinder the effective implementation of constitutional guarantees. In this regard, the Government has been advised to initiate criminal procedure law reforms to strengthen the judicial protection mechanism in jury trials.
The Public Foundation “Legal Policy Research Center” sought commentary from its Senior Legal Advisor, Dr. Dmitry Nurumov, who played an expert role in the establishment and subsequent reforms of the jury trial system in Kazakhstan.
“The issues contested in the Constitutional Court of the Republic of Kazakhstan are particularly sensitive for the Kazakhstani jury trial system, as the judge retires to the deliberation room together with the jurors. This raises concerns that the professional judge may exert pressure on the jurors and, if necessary, use their broad powers to replace a juror.
In common law countries (the United States, the United Kingdom, Canada), jurors have full autonomy in rendering a verdict, and interference in their work is strictly limited. The Criminal Procedure Code of the Republic of Kazakhstan does not explicitly define what constitutes the “impossibility” of participating in a court hearing, creating legal uncertainty. In the Kazakhstani model of a jury trial, the professional judge participates in rendering the verdict on an equal footing with the jurors. Therefore, the presiding judge’s authority to “return” the case from the verdict stage should be minimized, as it allows the judge to influence the jurors.
It cannot be ruled out that a juror’s “impossibility” to participate may be identified only after the jury has retired to the deliberation room or even after the verdict has been rendered. This may indicate a deliberate “preservation” of such facts until a convenient moment. Grounds for disqualifying a juror should be clearly regulated at each stage of the trial. A ban should be established on replacing jurors and dissolving the jury panel after voting on the verdict, while further challenges to the verdict should be addressed at the appellate level. In many jurisdictions, there is a rule that once voting has begun, no juror may be excluded or replaced, which safeguards the independence of the jury and reduces the risk of manipulation.
The absence in the Criminal Procedure Code of the right to appeal the presiding judge’s procedural decision to disqualify a juror, which is recorded only in the court session protocol rather than in a court ruling, in my view, limits the right to judicial protection. The Constitutional Court of the Republic of Kazakhstan has noted that any interference after the verdict is rendered undermines the principles of fair trial and legal certainty. It is difficult to disagree with this position.
Jury deliberations play a crucial role in the trial process. If a juror is absent from the deliberation room, the judge must determine the reason for their absence. If the reason is valid (illness, sudden health issue, emergency), the juror may be replaced by an alternate. However, deliberations must begin anew to ensure fairness, as the alternate juror cannot simply join an ongoing discussion.
In some countries, if there are no alternates, the court may either proceed with a reduced jury (with the consent of the parties) or declare a mistrial. However, reducing the number of jurors is controversial and is mostly applied in civil cases.
Jurors are not allowed to leave the deliberation room without the judge’s permission. If this occurs, the judge may summon the juror back, remind them of their duties, replace them with an alternate (if available), or, in case of a serious violation, declare a mistrial. If a juror refuses to vote or deliberately obstructs the process, the judge may summon the jurors to the courtroom to remind them of their duties and, in exceptional and clearly defined cases, remove and replace the juror with an alternate.
A good practice is to appoint more alternates, especially in complex cases with unpredictable trial durations. The Constitutional Court of the Republic of Kazakhstan, in its normative ruling, recommended increasing the number of alternate jurors, which is a logical step.
In conclusion, I would like to emphasize the urgent need for a broader approach to jury trial reform, including a transition to the classic model, which would strengthen guarantees of jury independence by clearly delineating the roles of the professional judge and the fact-finders (jurors). This would also establish clear rules for replacing jurors—only in exceptional cases—before the start of voting in the deliberation room.”
This material has been funded by UK International Development from the UK government; however, the views expressed do not necessarily reflect the UK government’s official policies. The material has been prepared within the framework of the project “Strengthening Jury Trials by Capacity Building for Judges, Prosecutors, and Lawyers in Kazakhstan” implemented by PF “Legal Policy Research Centre” (LPRC). This project was funded with UK International Development from the UK government.
