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Practice and the legitmate use of rehabilited grounds for termination criminal case
Jetibaev Nurbol Satybaldyevich, Kazakh National University named after al-Farabi, candidate of jurisprudence, the Faculty of Law
Kamalova J., Eurasian Technology University, undergraduate, the Faculty of Law Bazargalyev Nurbulan, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: [email protected]
Practice and the legitmate use of rehabilited grounds for termination criminal case
Abstract: This article describes the issues of the Institute of termination of criminal proceedings in the criminal procedure law. There is a detailed characteristics of the rehabilitating grounds for refusal to initiate criminal proceedings. Keywords: criminal, criminal proceedings, identification.
Under the base of the termination of criminal cases are understood law circumstances that preclude prosecution or by the prosecution of evidence exclude the possibility of criminal sanctions and measures of social influence, or allow us to apply instead of criminal punishment measures public impact. — Scientists protsessualists were different formulations of the concept of “termination of the criminal case”. N. V. Zhogin and F. N. Fatkullin understand beneath Procedure Act (act), which expresses the decision authorized by the officer of the absence of the required prerequisites for the criminal proceedings and to waive further reference [1]. A. L. Dubinsky noted that the termination of criminal proceedings “... department, where the final stage of the investigation, which authorized state body ... sums up the case of manufactured paper analyzes and evaluates the totality of the evidence collected and on the basis of the decisions formulated the impossibility of further proceedings in connection with the presence of the circumstances provided for by law, and also resolves all issues arising out of the decision on the merits” [2]. S. A. Shafer calls the termination of criminal cases procedural safeguards against unwarranted criminal prosecution [3]. Thus, the termination of criminal proceedings, multifaceted phenomenon, and in the theory of criminal procedural law is viewed from different sides. Termination criminal cases — non-uniform shape of the preliminary investigation and this heterogeneity should be considered when designing definition. V general it can be concluded that the termination of criminal proceedings — this is the end of the preliminary investigation without sending the case to the court in establishing the grounds for excluding a person from criminal responsibility or circumstances precluding further criminal proceedings. Procedural activity in the case of fully finished and further progress of the case precluded if the decision to terminate has not been canceled in accordance with the law. Refusal to initiate criminal proceedings and termination of the Republic of Kazakhstan is possible only on the grounds specified by law. At the Institute of failure to
prosecute assigned specific tasks: a) prevent illegal and unwarranted initiation of criminal proceedings; b) prevention of procedural costs, unnecessary suspicions of citizens, criminal prosecution of innocent persons; c) providing compensation for material damage caused by the offense; d) identification of the causes and conditions that contributed to the commission of offenses and the prevention of such acts. Depending on the possible legal consequences of criminal procedural grounds for refusal to institute criminal proceedings in the theory (Efimichev S. P., Stepic V G., Szymanowski V V., A. L. Khan, Sarsenbayev T. E.) and practice of criminal proceedings are divided into rehabilitating and non-rehabilitating. However, the practical application is still cause some problems and questions. Because the study of the practical application of exemption from criminal liability for rehabilitating grounds is an actual problem for modern jurisprudence.
By exonerating circumstances precluding criminal proceedings are those that indicate the absence of the substantive preconditions for the beginning of the criminal procedure and did not entail criminal law or criminal procedural consequences. This means that contain messages and other materials collected absence of a crime (signs act) pointed to by the applicant, or they do not have evidence of a crime. In this context, the legislator in the first part ofArt. 39 Code of Criminal Procedure indicates erroneously as rehabilitating grounds for refusal to institute criminal proceedings on items 5, 7, 8 of the first part of Art. 37 Code of Criminal Procedure.
In view of the different legal consequences (eg, concerning the right to compensation in civil proceedings) for the theory and practice of criminal trial is set to the question of the precise delimitation of circumstances indicating the absence of any evidence of a crime or the lack of corpus delicti (Nos. 1, 2 of the Art. 37 Code of Criminal Procedure). Detailed description of each of these exculpatory grounds to refuse to initiate criminal proceedings, has practical value for the prosecuting authorities.
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Section 12. Criminal law and criminology
All other circumstances listed in Art. Art. 37 and 38 of
the Code of Criminal Procedure (except for the absence of corpus delicts and events), are non-rehabilitation. They indicate the presence of certain procedural obstacles for initiating and criminal investigation. In other words, while the crime took place, and in fact, but for various reasons, the Criminal Procedure Act, further production has no future. For example, failure to face the time of the offense the age at which criminal responsibility is not regarded as a lack of (subject) crimes, and other ground — if you must use it to compulsory educational measures in view of the increased danger to society acts and negative personality characteristics.
In contrast to the circumstances of the adoption of rehabilitating procedural decisions on other circumstances depends on the discretion of the preliminary investigation, agreed with the position of supervising prosecutor. In case of refusal to institute criminal proceedings on the grounds of non-rehabilitation of the applicant retains the right to bring a civil action in civil proceedings.
From a legal point of view can be divided grounds to refuse to initiate criminal proceedings on unconditional (eg, no complaint of the victim in cases of private and private-public prosecution, the person at the time of committing the act has not reached the age of criminal responsibility) and due to certain factors (in particular, the preparation consent of the person against whom the procedural decision, or the existence of conditions expressly provided by law, for example, the act of amnesty). In depending on the subject of legal regulation of grounds for refusal to institute criminal proceedings are traditionally divided into two groups: the substantive and procedural (Lupinskaya P. A., Davydov P. M., Mir D. A.). In our opinion, an indication of the rules of substantive law, not given in the article. 37 Code of Criminal Procedure, should result in a descriptive-motivational part of the decision on refusal to initiate criminal proceedings. The resolution of this procedural act necessary to refer to para. 12), the first part of Art. 37 Code of Criminal Procedure [4]. We believe that as a condition of the decision to dismiss the criminal case are:
- Availability of rehabilitative procedural grounds, uniquely entailing exclusion of criminal prosecution;
- The presence of the will of certain actors in the law that allows not to prosecute;
- There is agreement supervising prosecutor.
In the latter two cases, the grounds for refusal to criminal charges related to non-rehabilitation and appropriate procedural decision for criminal prosecution bodies is not mandatory, and depends on the discretion of the investigator, the investigator, the body of inquiry, the prosecutor. It is unacceptable to refuse to open a criminal case for lack of participation in the commission of a crime, even if there are sufficient data about the event and the crime or investigator of doubt arose in his involvement in the act of [5]. In this case, the criminal prosecution body is obliged to perform all possible in the criminal case proceedings and investigations necessary to refute or confirm the finding of guilt face. Only after
that can follow a final decision on the termination of criminal proceedings on the basis of the second part ofArt. 37 Code of Criminal Procedure in view of the absence of proof of a crime.
Thus, in those circumstances preventing the implementation of prosecution can distinguish two groups of non-rehabilitation reasons used:
- For refusal to institute criminal proceedings, and for the termination of criminal proceedings (Art. 37 and 38 of the Code of Criminal Procedure);
- Only to stop the criminal case as the pre-trial, because the trial stage of criminal proceedings (Art. 38 Code of Criminal Procedure). Po our opinion, the refusal to initiate criminal proceedings with exemption from criminal responsibility (pp. 3-8, 10, 12 pieces the first Art. 37 Code of Criminal Procedure), contrary to Art. 77 of the Constitution of the Republic of Kazakhstan, Art. 19 Code of Criminal Procedure, according to which a conviction does not fall within the competence of the prosecuting authorities, and is the exclusive competence of the court. To resolve this contradiction decision of the prosecuting authorities should authorize sudom.V due to the fact that under Art. 37 Code of Criminal Procedure range of circumstances that prevent criminal charges, is not exhaustive. Based on the analysis of other laws, international legal acts, regulations, we can conclude about the inadmissibility of a criminal case in respect of:
1) a person to refuse to testify against themselves, their relatives or spouse (Sec. 2, Art. 77 of the Constitution of the Republic of Kazakhstan);
2) a lawyer, notary public, and certain other persons having privileges of testimony and refused to disclose information under interrogation that have become known to them in connection with their professional or official duties (Part Three Art. 15 of the Law of the Republic of Kazakhstan “On Advocacy”; Part Three Art. 18 of the Law of the Republic of Kazakhstan “On Notary”);
3) a person who, because of their young age or physical or mental disability is not able to correctly perceive the circumstances relevant to the case, and give them evidence (p. 4 the second part of Art. 82 Code of Criminal Procedure);
4) a witness, victim, expert or interpreter who volunteered during the inquiry, preliminary investigation or trial before the court verdict said the falsity of their testimony, conclusions or wrong translation (Note to Art. 352 of the Criminal Code);
5) judges — about the circumstances of the criminal case, which became known to him in connection with participation in the criminal proceedings, as well as during the discussion in the conference room issues raised by adjudication (n. 1, hr. 2, Art. 82 Code of Criminal Procedure);
6) of the victim, civil plaintiff, civil defendant and their representatives, as well as an expert witness, who called from another state in accordance with the rules of international legal assistance in criminal matters in connection with their testimony or Imprisonment As experts in the case, which is the subject of the proceedings (the first part of Art. 9 of the Convention on Legal Assistance and Legal Relations in
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Some issues of execution of criminal punishment in the form of a fine
Civil, Family and Criminal Matters, ratified by the Law of RK March 10, 2004, Art. 526 Code of Criminal Procedure);
7) the person who caused the harm interest only commercial or other organization that is not a state-owned enterprise, in the absence of application of the leader or his consent (Art. 35 Code of Criminal Procedure). Rol prosecutorial supervision in enforcing criminal protsessualls rules governing the refusal to initiate criminal proceedings, in our opinion determined by the following factors: firstly, the prosecutor supervises the legality not only of the decision not to institute criminal proceedings, but all proceedings during the investigation to check and secondly, the prosecutor,
having a significant amount of procedural rights in comparison with Chief of Investigations, Chief of the inquiry body is obliged to ensure the quality of departmental procedural controls; thirdly, the characteristics of the prosecutor’s supervision in Kazakhstan is that the prosecutor promptly respond to unreasonable decision not to institute criminal proceedings than court. Prosecutor within 24 hours sent a copy of the decision to refuse to initiate criminal case, he is entitled to request and examine the materials before the investigative audit. The legality of the grounds for termination of the criminal case guarantees the constitutional right of every citizen.
Referenses:
1. Zhogin N. V., Fatkullin F. N. The preliminary investigation in the Soviet criminal trial. - M., 1965.
2. Dubinsky A. J. Grounds for termination of criminal proceedings in the preliminary investigation stage. - Kiev, 1973.
3. Sheyfer S. A. Some questions termination of criminal cases at the stage of preliminary investigation//Questions of criminology. - 1961. - № 1-2.
4. Criminal Procedural Code of RK. - Almaty, - 2014.
5. Failure to institute criminal proceedings: Abstract of dissertation for the degree of Candidate of Legal Sciences. Specialty 12.00.09 - criminal procedure; criminalistics and forensic examination; operatively-search activity/A. K. Tashibaeva. -Kazakh Humanitarian Law university. - 2004. - 1.
Malykova Sholpan Baltabekovna, Kazakh National University named after al-Farabi, candidate of jurisprudence, the Faculty of Law
Akpaeva Nurlytan, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: [email protected]
Some issues of execution of criminal punishment in the form of a fine
Abstract: This article discusses issues related to the execution of criminal punishment in the form of a fine, some execution problems of punishment in a fine, ways of how to solve problems have been reviewed. Particular attention is paid to the new criminal legislation of the Republic of Kazakhstan, where the punishment by a fine has become another kind.
Keywords: punishment, fine, execution, problem.
According to the article 41 of the Criminal Code of the Republic of Kazakhstanfine is a monetary penalty, appointed within the limits prescribed by this Code, in the amount corresponding to a certain number of monthly calculation indices established by the legislation of the Republic of Kazakhstan and in force at the time the criminal offense, or in the amount times the sum or the cost of bribes [1].
The problem of punishment in the form of a fine is quite versatile. It includes not only the penal and criminal law, but also socio-economic issues associated with defining the nature of punishment, as well as defining the boundaries of its application and the overall prospects of its development. The fine has the ability to bring revenue to the state,
and therefore, state authorities are showing interest in this punishment and its application is not without reason. The fine has less repressive than other punishments. The fine is instant punishment, where the application of the repair is excluded, for this reason, the imposition of a fine shall be determined in the first place, not the category of the crime and the degree criminal prevalence of the person who committed this. More effectively, fine will affect first-time offenders than those who had been previously convicted.
The amount of the punitive impact of the fine is directly related to its size. Moreover, this is the most difficult question resolved by the court in the verdict. The amount of the fine is determined by the court taking into account the gravity of
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