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References:
1. Исаева К. А., Дюсебаев Т. Т., Воронцова И. Н., Каженова А. С., Права и свободы личности: современные аспекты содержания//В сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 9th International symposium. - 2016. - 337-346.
2. Шамурзаев Т. Т. Стенограмма экспертного форума «Концептуальные вопросы реформирования уголовного судопроизводства Кыргызской Республики» от 22 апреля -2013 г. - С. 44.
3. Исаева К. А., Токторова А. Э., Шимеева Ж. Ш., Алишеров А. Криминальные процессы в финансово-кредитной сфере: основные факторы и предпосылки совершения незаконного получения кредита в странах СНГ//В сборнике: The Ninth International Scientific Conferenceon Private and Public Law Proceedings of the Conference. Orzechowska K. (Ed.). - 2015. - С. 27-37.
4. Даровских С. М. Принцип состязательности в уголовном процессе России и механизм его реализации: Дис. ... канд. юрид. наук: 12.00.09: - Челябинск, - 2001. - 219 c.
5. Трунов И. Л. Современные проблемы защиты прав граждан в уголовном процессе: автореф. дис. ... д-ра юрид. наук: 12.00.09: -Москва, - 2001. - 43 c.
6. Мартыняхин Л. Ф. О функциях и полномочиях суда в досудебном производстве//Российский судья. - М.: Юрист, - 2004, -№ 8. - С. 11-13.
7. Кудрявцев В. Л. Процессуальные проблемы доказывания в деятельности адвоката-защитника в уголовном судопроизводстве //Журнал российского права. Выпуск - № 6 (102)/2005. - C. - 44-50.
8. Шейфер С. А. Доказательства и доказывание по уголовным делам: проблемы теории и правового регулирования. Монография. -М.: Норма, - 2009. - 240 с.
9. Isayeva K. А.А, Seylkhanova S. A., Shimeyeva Z. Sh., Oskenbay G. The main factors causing the need for international cooperation to combat criminal phenomena in the CIS countriesZ/В сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 8th International symposium. - 2015. - С. 126-135.
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-274-277
Isaeva Klara Asangazyevna, Doctor of Law, Professor at the Sub-department of criminal law and procedure, Department of Law, Kyrgyz National University named after Jusup Balasagyn Kamalova Leila Narimanovna, Candidate of legal sciences, Associate Professor of the Sub-department of criminal law and procedure, Department of Law, Kyrgyz National University named after Jusup Balasagyn Dyusebaev Talgat Turashevich, Senior lecturer at the Department of criminal law, criminalistics and law enforcement activity, D. Kunaev Humanities University of Transportation and Law
Shimeeva Zhibek Sherovna, Senior lecturer at the Sub-department of criminal law and procedure, Department of Law, Kyrgyz National University named after Jusup Balasagyn E-mail: [email protected]
Attorney's activity in the mechanism of ensuring of rights and freedoms of a personality in the conditions of competitiveness of criminal procedure
Abstract: The article is dedicated to the attorney's activity aimed at the ensuring of rights and freedoms of a personality in the conditions of competitiveness of criminal procedure. The article presents the analysis of the legislative base of Kyrgyzstan and the debate of points of view of the scientists in respect of the problem considered in the article is conducted. Keywords: attorney, rights, freedoms, personality, criminal procedure, principle of competitiveness.
It is a correct position that «... from the moment of collapse freedoms of the man and the citizen, especially in the sphere of of socialistic system, in the CIS countries, a need to build unique criminal procedure relations, came up. It is consistent that the gov-legal systems based on the principles of observance of rights and ernments of CIS countries tried to minimize negative consequences
Attorney's activity in the mechanism of ensuring of rights and freedoms of a personality in the conditions.
of conducted and planned legal reforms, for the purpose of which, the nuances of the structure of law of already successful states were carefully studied, and there were attempts to implement a range of provisions from the foreign legislation. At the same time, in our opinion, neither state-participant of the CIS succeeded in carrying out an essential reform, which would deliver of repressive order of application; counter manifestations of corruption; establish the control of crime and, herewith, ensure real observance of constitutional rights and freedoms of the man and the citizen fully. The procedure provisions of defense attorneys specified in the CPC of the considered countries, their powers, do not allow the realization of such important principle as competitiveness of the criminal procedure and equality of rights of the parties etc. to the full extent, which prevents from ensuring the rights and freedoms of the man and standards of just trial proceedings» [1, P. 130-131].
Undoubtedly, the guarantee of the attorney's freedom is an important aspect for successful realization of the principle of competitiveness and equality of rights of the parties. For instance, N. B. Sonkin emphasized the fact that the attorney should be free of the outside pressure in their activity, including from the side of the law enforcement bodies and state in the whole [2, P. 148].
Professor Smanaliev K. M., speaking about the need to expand the legal status of attorneys highlighted that «... it is required to formalize criminal prosecution for the interference in the attorney's actions performed in accordance with the law, professional duties and ethical norms; interdict the intrusion in the sphere of attorney activity through methods used in the law enforcement activity by guaranteeing the immunity of correspondence, documentation, telephonic negotiations, service premises and houses» [3, P. 41]. This matter concerns the society because a growth of indicators certifying about the breach of attorneys' rights is observed, which cannot not affect the efficiency of protection of the rights and legal interests of a suspect and an accused. Hence, as it is noted in a different source, if one considers from the modern point of view, what is «... a postulate, that the institute of rights and freedoms of personality constantly gains new manifestations and properties, herewith, becoming more and more a constructive element of the state legal system» [4, P. 338].
V. N. Burobina lists main illegal actions from the side of state bodies aimed at, primarily, obtaining information from the attorney, which is a secret that is not subject to disclosure. For instance, the indicated author included illegal actions related to: summon for questioning on the client's case; their «security check», including within the frames of attorney proceedings; conduct of investigative work; use of physical abuse in order to force them to disclose an attorney's secret or remove them from the case; institution of criminal proceedings against the attorney in order to obtain information that is of interest for state bodies; breach of the atmosphere of confidentiality in prison during the attorney's communication with their client [5, P. 80-88].
The analysis of legal literature sources shows the ambiguous approach to the disclosure of attorney's secret.
Unspoken investigative actions specified in the CPC of Kazakhstan, the consideration of which requires the conduct of a separate examination, are of special relevancy. At the same time, according to the article 232 of the CPC of RK «Conditions and grounds of the conduct of unspoken investigative actions», it is noted in part 8 of the specified article that «it is interdicted to conduct unspoken investigative actions in respect of the attorneys performing professional help, with the exception of the cases when there are grounds to assume that they are preparing to commit or have com-
mitted grave or especially grave crime» [6]. This position of the legislator is correct, but from our point of view, the responsibility of persons allowing the abuse from the side of officials, including for illegal actions in respect of the defense attorneys in the whole, should be enhanced.
No fewer questions arise during the use of a polygraph in respect of the client. Unfortunately, it is not always taken into account that «... polygraph test is performed only after willful consent of the tested person, which should be confirmed with a written note. In the course of a polygraph test, no question can be asked without their preliminary discussion with the tested person. The question should be constructed in such way to exclude the feeling of humiliation and insult in the tested person [7, P. 22].
Thus, it is reasonably noted that «... today, a myth of super efficiency of a polygraph circulates in the society. Unfortunate errors are attributed to insufficient qualification of separate specialists, but the very reliability of the technology is almost unquestionable. On the pages of different publications, one can read «competent data» about the fact that the reliability of checks on the lie detector is 90-95% or even greater. This myth is mightily supported by both polygraphists and other interested parties. Firstly, it is done for the purpose of advertising to create commercial demand for such services. They are expensive and bring good profit to specialized firms. Secondly, it is done to create psychological effect on the tested people depriving them of the will to resist and thus, increase the results of the checks. Figuratively speaking, such approach helps ensure victory before the battle. Thirdly, there are deeper socio-psychological aspects of this phenomenon» [7, P. 23].
Certainly, competitive beginnings at the stage of pre-trial proceeding in the matters of evidence material should be implemented in the norm of the CPC, which will promote the protection of rights of a personality in the course of trial proceedings. In such situation, the attorney's activity should be built taking into account the forensic knowledge allowing ensuring effective protection at the stage of pre-trial proceedings.
Hence, it should be taken into consideration that «... conflicts during the preliminary investigation play noticeable role in the definition of the tactics of conduct of investigative activities. Essentially, the choice of methods of influence aimed at revealing, obtaining and fixation of evidence information depends on the conflict (absence of conflict) of the developing situation» [8, P. 21]. In the other source, the attention is drawn to the fact that «... in the process of conflict, one subject undertakes activities contradicting the interests of the other subject. Herewith, the participants of the conflict either cannot or do not want to solve the conflict with the help of legal norms or by way oflawful behavior due to objective or subjective reasons related to the unlawfulness of the very dispute, influence of criminal mentality, traditions or convictions that it is impossible or unreasonable to solve this disputable situation by other ways» [9, P. 141].
Many disputes arise with regard to the circumstances in proof at the stage ofpre-trial proceedings. For instance, as it is known that «... the establishment of the exact age of the underage person involved in the preliminary investigation is required to solve a range of important issues and, primarily, the issues about the presence of grounds for criminal prosecution, or, on the contrary, it can be a sufficient reason to refuse to institute or terminate a criminal case; the order of criminal case investigation, use of additional procedural rules as well as peculiarities of use of these or those criminal legal norms concerning the terms, types and limits of punishment, circumstances mitigating and aggravating punishment as well as co-
ercive measures of correctional impact depend on it» [10, P. 89].
Moreover, presence of only judicial control at the stage of pretrial proceeding proposed by some authors cannot automatically take it into the competitive category. It should be taken into account that formal appearance of court at this stage, where it has other functions, does not mean the realization of the considered principle. It is quite justified that a few authors state the impossibility of use of the principle of competitiveness at the stage of preliminary investigation.
As some scientists emphasize, the strict differentiation of the function ofprotection, accusation and solution of a case cannot deliver the court of a responsibility to perform justice, because it will deform the authentic sense of competitiveness. In unison with the stated, Yu. K. Orlov notes that if the court is suspended from the circle of subjects of proving, it will significantly reduce the possibilities to establish truth in the case and, hence, to serve as guarantee for its achievement [11].
Other authors also specify that the very principle of competitiveness implies the court's activity. As N. A. Vlasova indicates, «... the court should not be limited with the role of unemotional and lacking initiative arbiter indifferent to the truth, but should take all measures to establish the truth, especially given the insufficiency or unsoundness of the evidence provided by the parties. The fact that the court should not take the side of the prosecutor, substitute the prosecutor, does not mean that it cannot actively participate in the examination of evidence and react to the facts of crimes revealed in the course oftrial proceedings» [12, P. 44].
At the same time, as the analysis shows, the main argument of the opponents of extension of the principle of competitiveness to pre-trial stages includes, as a rule, the following circumstances: firstly, on the basis of the provisions of the Constitution, it follows that the term «court proceedings» presupposes only judicial examination, hence, «competitiveness» does not extend to pre-trial stages [12, P. 45]. Secondly, there cannot be competitiveness at the stage of involving a person as the accused, because at this stage, to avoid exposure and consequently punishment, they undertake various measures. Such position presupposes the involvement of the defense attorney only after the presentation of accusation.
Thus, the principle of competitiveness should extend only to court proceedings, but it should be taken into account that, firstly, it is required to provide the defense attorneys with the powers that would allow them conducting a «parallel» investigation at the stage of law enforcement investigation, but under judicial control (in its narrower sense). Secondly, the working out of an organized legal mechanism allowing maximally creating the con-
ditions for the defense party. For collection of and obtaining evidence both in the bodies of investigation and other institutions, where the information important for the case can be received. Herewith, the balance between the interests of the suspect, the accused and the state, the main task of which is the protection of rights and freedoms of the victim, should be preserved. Thirdly, the court should keep the function related to the establishment of the truth with regard to the case; herewith, given the ensuring of equal rights of the parties, in the course of judicial proceeding, the court should exhibit maximal activity. Furthermore, at all stages of criminal investigation, the court should not bear the functions of the prosecutor. Fourthly, in the conditions of competitiveness, the court should be empowered with the right to take measures to fill the gaps in the investigation with regard to the case, regardless the parties participating in them, namely, the prosecution and the defense. For instance, it is referred to the conduct, if necessary, of certain judicial actions in order to check their authenticity and admissibility of evidence provided by the parties; opportunity to study available evidence with regard to the case provided by the parties; demand for any data that can ensure correct qualification of the crime committed by the person and appointment of fair punishment. Fifthly, such approach is grounded also because: the level of corruption of law enforcement bodies is quite high; professional qualification and competence of the prosecution party and defense party often do not correspond to the set requirements, which reduces the possibility of ensuring of protection of the rights of the persons involved in the criminal procedure. Sixthly, the peculiarity of procedural functions of the participants of the process determined by their role purpose at different stages of criminal court proceedings has significant impact on the specifics of the effect of the considered principle. Herewith, it is important to strive for such legal regime and mechanism of its regulation, at which different participants of the procedure would have maximal opportunity to stand for and protect the rights of the personality before court. Seventhly, it is important to consider that the division of functions into prosecution, defense and solution of the case cannot have strict boundaries because the bodies of prosecution can perform not only accusatory but also other functions (take measures on the ensuring of civil claim, make decisions about the termination of the investigated case, collect evidence of the crime and evidence that can mitigate a person's responsibility etc.).
The above mentioned certifies about the need of change of the structure and content of criminal procedure legislation, which, in our opinion, the CIS countries are not ready for due to objective and subjective reasons.
References:
1. Isayeva K. А.А, Seylkhanova S. A., Shimeyeva Z. Sh., Oskenbay G. The main factors causing the need for international cooperation to combat criminal phenomena in the CIS countriesZ/В сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 8th International symposium. - 2015. - С. 126-135.
2. Сонькин Н. Б. Международно-правовые стандарты адвокатской деятельности//Правовые основы адвокатской деятельности и адвокатуры//Адвокатская деятельность и адвокатура в России. Введение в специальность. Часть 1: учебник/под ред. И. Л. Трунова. - М.: Эксмо, - 2006. - С. 148.
3. Сманалиев К. М. Стенограмма экспертного форума «Концептуальные вопросы реформирования уголовного судопроизводства Кыргызской Республики» от 22 апреля - 2013 г. - С. 41.
4. Исаева К. А., Дюсебаев Т. Т., Воронцова И. Н., Каженова А. С., Права и свободы личности: современные аспекты содержания//В сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 9th International symposium. - 2016. - C. 337-346.
5. Адвокатская тайна/под ред. общей редакцией канд. юрид. наук В. Н. Буробина. - М.: Статут, - 2006. - С. 80-88.
6. Уголовно-процессуальный кодекс Республики Казахстан от 4 июля 2014 года № 231-V (с изменениями и дополнениями по состоянию на 09.04.2016 г.)//http://online.zakon.kz/Document
Use of non-traditional methods of research in criminalistics during the investigation of crimes at modern stage
7. Исаева К. А. Отдельные проблемы использования полиграфа/Исаева К. А.//Вестник Кыргызско-Российского славянского университета. - 2013. - Т. 13. - № 1. - С. 20-24.
8. Исаева К. А. Теоретические аспекты "конфликтного следствия"/К. А. Исаева//Вестник Кыргызско-Российского славянского университета. - 2012. - Т. 12. - № 12. - С. 21-25.
9. Isayeva K. A., Kalbayev A. T., Avgustkhan S. A., Alisherov A. The main prerequisites for forensic classification of assassinations in the CIS countries//B сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 8th International symposium. - 2015. - С. 136-146.
10. Isaeva K. A., Abdukarimova N. E., Oskenbai G., Vorontsova I. N. Die eigenschaften des bewisgegenstandes in den sachen über die jugendstraftaten laut gesetzgebung der Kirgisischen Republik.//B сборнике: The Ninth International Scientific Conferenceon Private and Public Law Proceedings of the Conference. Orzechowska K. (Ed.). - 2015. - С. 88-100.
11. Орлов Ю. К. Проблемы теории доказательств в уголовном процессе. Монография/ - М.: Юрист, - 2009. - 175 c.
12. Власова Н. А. Проблемы совершенствования форм досудебного производства в уголовном процессе: Дис. ... д-ра юрид. наук: 12.00.09: - Москва, - 2001. - 405 с.
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-277-280
Kamalova Leila Narimanovna, Candidate of legal sciences, Associate Professor, Sub-department of criminal law and procedure, Department of Law Kyrgyz National University named after Jusup Balasagyn
Shimeeva Zhibek Sherovna, Senior lecturer at the Sub-department of criminal law and procedure,
Department of Law, Kyrgyz National University named after Jusup Balasagyn Zholdoshaliev Midin Turdumamatovich, Chairperson of the Pervomaiskiy district court in Bishkek Niyazbaev Samar Nuredinovich, Post-graduate student, Kyrgyz National University named after Jusup Balasagyn E-mail: [email protected]
Use of non-traditional methods of research in criminalistics during the investigation of crimes at modern stage
Abstract: The article considers the peculiarities of use of non-traditional methods of investigation of crimes at modern stage on the example of use of a polygraph as well as in conflict situations.
Keywords: investigation, investigative actions, crime, polygraph, organized criminal group.
K. A. Isaeva is right, when she writes that, at modern stage, there has been a combination of economic and general criminal offence crimes at different level. Herewith, criminal formations appear and function consistently at the very junction of such directions of criminal activity as drug business, kidnapping of people with the purpose of further sale for sexual exploitation or other purposes, organized blackmail with the purpose of taking control of entire industries of the economy and investing material means obtained from drug business into these industries; ifrequired, they resort to the termination of rivals or persons preventing the realization of their illegal activity. The binding of these criminal directions, which were not interrelated before, determines a completely new qualitative content ofsocially dangerous offences that have left the borders of one country [1, P. 130]. Such situation cannot not have effect on the criminalistic methods of research during the investigation of such especially dangerous crimes.
Thus, the means of acoustic control used for discrete listening and (or) fixation of a conversation between the participants of the event, as well as a different acoustic control of other sounds that pose interest for the bodies of investigation, are used quite widely in the solving and investigation of crimes with the participation of organized criminal groups (hereinafter, OCG).
At the same time, the investigative bodies do not possess sufficient information due to the non-traditional nature of the research of objects. For instance, it should be taken into consideration that work with the sound given the modern development of information technologies is taken to a completely different qualitative level.
Current software allows processing the sound and changing parameters of voice: tonality, voice timbre, pitch of voice, as well as cutting any text of the human's speech according to the printed alphabet, thus, making words and sentences. Herewith, during «cutting» and «binding» of the sound, there are no signs of combining at the places of integration, which, undoubtedly, makes the conduct of investigation difficult. In addition, further rerecording of such records on regular tapes and discs makes expert examination helpless. In such case, an expert can only answer a question about the presence of digital processing of the examined sound. Such function as cleaning of speech from the external environment sounds and, on the contrary, superimposing of any required foreign noises is available.
It is more difficult for a speaker to give intonation and emotional coloring to the speech, but it is now possible in the presence of respective special software. Based on the above stated, one can
