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Section 15. Science of law
The tasks of linguistic expertise:
- give an interpretation and explanation of the meanings and origins of words, phrases, sustainable phraseological expressions (idioms);
- interpret primary and secondary (connotative) meaning of linguistic units or speech (oral or written);
- to carry out the interpretation of the provisions of the document text to determine what options understanding these provisions is possible in modern discourse;
- conduct research trademarks, verbal symbols, mottoes, slogans, advertising texts, commercial, corporate names on their identity or similarity to the point of confusion with other symbols;
- to conduct a study of the text fragment to identify its content and semantic orientation, modality of propositions, expressive and emotive speech units and their formal-grammatical features and semantics of specificity used stylistic means and methods.
The need for forensic linguistic expertise most often occurs:
- in criminal proceedings and law enforcement on disclosure, investigation and prevention of crimes committed
through verbal acts (libel, insult, and incitement of hatred and enmity, a is equal humiliation of human dignity on the grounds of belonging to any ethnic, religious or other social group, illegal use of a trademark, false advertising, violation of copyright and related rights, and patent rights, illegal distribution in the literature pornographic materials, etc.);
- in civil proceedings the courts of General jurisdiction on claims to the protection of honor, dignity and business reputation of citizens, to the protection of copyright and related rights;
- in arbitration courts on claims of legal entities o the protection of business reputation, the recognition of invalid (or illegal) decisions of Rospatent, the cancellation of the registration of verbal designation as a trademark, to ban the use designation similar to the point of confusion with a registered trademark, to invalidate warning Rospechat made by the media in connection with the distribution of extremist materials and other violations of the law the media, etc.;
- Affairs about administrative offences (propaganda of narcotic drugs and psychotropic substances or their precursors).
References:
1. Grachev M. A. Problems of formation and the formation of language minority as a science.//Bulletin of the Nizhny Novgorod state University n. a. N. A. Lobachevsky. - 2010, - No. 4 (2). - S. 499.
2. Galyashina E. And the foundations of judicial received any. - M.: Stance, 2003.
3. Federal state standard of higher professional education in the direction of training (specialty) 031003 forensics (qualification (degree) specialist) (as amended by the order of the Ministry of education and science of the Russian Federation dated 31.05.2011 No. 1975).
4. The possibility of conducting a forensic examination in the state judicial-expert establishments of the Ministry of justice. -M., 2004. - P. 424-425.
5. Vul S. M., Dovzhenko V O. Linguistic expertise as a new kind of research in the Ministry of justice of Ukraine.//Expert justice: problems of theory and practice. Abstracts of the Intern.naught.-practical. the conference (7-8 September 2006, the Autonomous Republic of Crimea). - Simferopol, 2006.
6. Baranov A. N. Linguistic examination of the text: theory and practice: textbook. allowance. - M., 2007. - P. 14-15.
7. Podkatilina M. L. Forensic linguistic examination of extremist materials. - M.: Writeport, 2013.
Zhanasbayeva Nazerke, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law
Baysalov Aly Dzhumamuratovich, candidate of jurisprudence, the Faculty of Law
Torgautova Balgyn Amyrbekovna, University Turan, candidate of jurisprudence, the Faculty of Law
E-mail: [email protected]
Pre-trial investigation in the new edition of the Code of Criminal Procedure of the Republic of Kazakhstan
Abstract: The issues of improving pre-trial investigation in the new edition of the Code of Criminal Procedure of the Republic of Kazakhstan in 2014.
Keywords: Code of Criminal Procedure, criminal justice, criminal proceedings.
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Pre-trial investigation in the new edition of the Code of Criminal Procedure of the Republic of Kazakhstan
For the first time ever the task for the public authorities to develop a new Code of Criminal Procedure of the Republic of Kazakhstan was delivered in August 2011.
Thus, the protocol decision meetings with the Assistant to the President, the Secretary of the Security Council of the Republic of Kazakhstan № 52-6.11 of 5 July 2011 (5 and 6) and № 52-6.13 of17 August 2011 (paragraphs 1-3), and on the basis of pursuant to instructions of the President adopted a decision on radical reform of criminal justice, planning the concept and the new edition of the Criminal Procedure Code of the Republic of Kazakhstan.
Hereafter, this task has been duplicated by national plan for the implementation of the Message of the Head of State Nursultan Nazarbaev to the Nation “Socio-economic modernization — main direction of development of Kazakhstan" dated January 27, 2012.
Responsible executives for the development of a new version of the Code of Criminal Procedure were appointed: Attorney General’s Office, Supreme Court, Ministry ofJustice, Agency for Combating Economic Crimes and Corruption, Ministry of Internal Affairs and National Security Committee.
The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 approved by the Decree of the President of the Republic of Kazakhstan № 858 dated August 24, 2009, noted that the effectiveness of the criminal policy of the state is impossible without an optimal model of criminal proceedings [1]. In accordance with the characteristics of a modern democratic, law-governed state, the main aim of the legislator is the formation of procedural law based on the recognition of the constitutional provisions on human rights and freedoms have direct effect, the meaning, content and application of laws and ensures justice.
The adoption of the Criminal Procedure Code of the Republic of Kazakhstan in 1997 marked the construction of a model criminal justice system, based on the adversarial criminal process. Over the years, since the entry into force and application in criminal proceedings of the Criminal Procedure Code of the Republic of Kazakhstan it was made a considerable number of additions and changes that contribute to the improvement of the criminal process. However, numerous changes and additions, perfecting certain rules of criminal procedure legislation on the one hand, created a conflict with the other, or form a new problem, because of the CCP itselfwas based on Soviet law, and many of the amendments are implemented in it were of foreign law and were fundamental nature.
Given the above, in the criminal proceedings there is a need to conduct a thorough reform aimed, on the one hand, to ensure the actual implementation of constitutional rights and freedoms of man and citizen, and the other — the release of the criminal justice from the elements of repression and cumbersome Soviet order of enforcement. Genuine modernization of existing legislation in this area is only possible by using a new conceptual approach to the structure of criminal procedure, the content of the stages of the process and the powers of its members. Attempts to
combine and match current realities in criminal procedure forms the Soviet criminal justice that it represents the current Code of Criminal Procedure of the Republic of Kazakhstan are impossible.
In this regard, the development and adoption of a new edition of the Criminal Procedure Code of the Republic of Kazakhstan in 2014 [2] is a strategically important step in the country’s ongoing large-scale legal reform.
One of the main areas of reforming the Criminal Procedure Code of the Republic of Kazakhstan is to optimize the prosecution as an exceptional pre-investigation and transfer functions of charge from the investigator to the prosecutor.
Considering the given directions on which the reform of the pre-trial investigation is built, the following can be noted.
1. Refusal of pre-investigation stage and initiation of criminal proceedings
This area is one of the most urgent to improve the criminal procedure legislation of the Republic of Kazakhstan, as acting Concept of Legal Policy identified simplifying and speeding up procedures, both in the courts and in the pre-trial stage.
In accordance with the previously applicable Code of Criminal Procedure of 1997 the decision on the application or report of a crime should be made not later than 3 days from the date of its receipt. Present period of pre-investigation may be extended up to 2 months (Art. 177). And this is, in fact, the term of the criminal investigation.
Furthermore, there is a clear tendency to increase the number of investigative actions undertaken during the preliminary examination. So, in 1959, it was allowed to carry out inspection and expertise, in 2009 — the opening, in 2011 — survey and obtaining samples. Thus, at the moment of the 15 investigative actions prior to the initiation of criminal proceedings may be carried out 5, and this is a whole third of the entire arsenal of the investigator. Such a trend could lead to a gradual admission of the production of all investigative actions during the preliminary examination. Then how it will differ from the preliminary investigation?
But most importantly, it was observed during the preinvestigation the largest number of violations of the rights and legitimate interests of citizens in criminal proceedings. This is facilitated by a variety of causes associated primarily with the flaw of the current legislation and favorable conditions for corruption. In particular, during the preliminary examination, participants of this phase of the criminal process have no procedural status granting them certain rights and allowing to realize these rights. As well as the lack of proper control by the supervisory authorities. These and other circumstances lead to procrastination of decision making, shelter crimes, poor investigation of the circumstances of the incident, etc.
Thus, it can be noted that:
- a conduct of pre-investigation — is a waste of time and delaying the start of the criminal investigation;
- materials of pre-investigation are not used, as a rule, in the course of proving the circumstances of the case in court;
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- immediately after the criminal case and taking it to its production investigator duplicates of the material of pre-investigation in the investigation documents;
- neither the prosecutor nor the judge cannot particularly affect the legality and validity of the refusal to initiate criminal proceedings; Attorney — because he is the prosecution and solidarity are often the investigator; judge — because it has no direct relation to the relinquished materials and it is not within its jurisdiction.
Refusal of pre-investigation in the future is well-founded. Previously made attempts to extend the range of investigative actions, the production of which is possible to open a criminal case, due to the fact that in legal practice the concept of “availability of sufficient data indicating signs of a crime” used in Part 2 of Article 177 Code of Criminal Procedure, is often identified by enforcers as the concept of “corpus delicti” Mixing these two types of data, the substitution of one to another in a number of cases are one of the causes of errors when checking the grounds for initiating criminal proceedings: pre-trial investigation authority seeks at this stage to establish the circumstances that must be proved only after the criminal case in the full preliminary investigation. Testing actions at this stage are limited to certain extent, i. e. set of validation actions necessary to make informed assumptions (not proof) body of pre-trial investigation that there was sufficient data indicating signs of a crime.
Final qualification of the crime in the excitation of criminal case from the law enforcer is not required because sometimes correctly classify a crime without a preliminary investigation is impossible. Therefore, in the initiation of criminal case is necessary usually the pre-qualification of the crime.
In addition, the Code of Criminal Procedure in force before 1997 allowed the criminal case without qualification of the crime. Thus, in accordance with Art. 186 parts. 2 Code of Criminal Procedure (changes and additions made by the Law of the RK in 2011) in the decision to initiate a criminal case filed in connection with the disappearance of a person, the article of the Criminal Code is not specified.
In the new edition of the Code of Criminal Procedure, the term “criminal proceedings” is replaced by “the beginning of the pre-trial investigation”.
In accordance with the art. 179 Part 1 of the CPC of the RK 2014, the registration of statements, reports in the Unified Register of pre-trial investigations or the first urgent investigative actions are considered to be the beginning of the pre-trial. Thus, the period of the application or report a crime is absent.
If there will be signs of an administrative offense or a disciplinary offense in a received statement or the message, the appeal within three days is passed with cover letter to the authorized state body or official. And if you have a received a statement, reporting of legal relations regulated by civil legislation of the applicant, within three days in writing explaining the right to go to court, if there is information about criminal offenses, the prosecution of which is carried out in private, materials are sent to the appropriate court of competent jurisdiction (Art. 179 of the CCP ch. 4, 5 - 2014).
In this case, according to Art. 180 of the Criminal Procedure Code of 2014 to the beginning of occasions pre-trial investigation are:
1) statement of an individual or a message of official or a public authority or the person performing managerial functions in the organization of a criminal offense or disappearances of persons;
2) voluntary surrender;
3) messages in the mass media;
4) report of the official body of criminal prosecution of preparing and committing or a criminal offense.
In general, the Criminal Procedure Code of 2014 regulated in detail beginning of the pre-trial investigation, however, it still needs to be adjusted at the technical level. For example, the new version is not quite clearly regulates the mechanism of reports reception and information about crime. In accordance with Art. 185 h. 2 of the CCP in 2014 and refusal to accept the application for registration of a criminal offense is not allowed and shall entail liability established by law, and may be appealed to the prosecutor or the court. This provision was not only one occasion to top pre-trial investigation — an application for a criminal offense. However, according to Art. 180 Code of Criminal Procedure 2014 pretext to launch a pre-trial investigation, other than a declaration are to: Post official government body or person performing managerial functions in the organization of a criminal offense or disappearances of persons, voluntary surrender, reports in the media, official report person prosecuting authority of preparing and committing a criminal offense or. And the beginning of the pre-trial investigation mechanism in the event of data in the project is no reason. These and other questions need to be clarified.
However, despite some shortcomings, in general, the new edition of the Code of Criminal Procedure concerning the exclusion of pre-investigation stage and a criminal case, is worthy of attention. Since the rejection of pre-investigation will allow:
- to reduce the length of stay of the proceedings in the production of the investigator, because he is not a judge, and should not be converted into it, taking a decision on refusal to institute criminal proceedings;
- in fact, will protect the rights of victims of crime, especially a civil action in a criminal case and other participants in the process;
- the decision will become motivated to discontinue criminal proceedings, the right to take that on exonerating grounds should be referred to the prosecuting authorities, and the reasons for non-rehabilitation in terms of prejudice — to leave for court.
2. Exclusion of filing an investigator indicted suspects at the preliminary investigation stage, with the transfer of these powers to the prosecutor
This innovation suggests that after the start of the pretrial investigation, the investigator gathers the necessary evidence, and then submit the materials to the prosecutor,
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who will make the final decision to charge or trial, or to
dismiss the case.
The new edition of Code of Criminal Procedure severely curtailed the powers of the investigator, previously regulated by the current legislation on criminal procedure. If the Code of Criminal Procedure 1997 is completely in the hands of the investigator gave the criminal investigation, including charges and preparation of indictment or termination of criminal proceedings (section 6 Code of Criminal Procedure), the new edition of the Code of Criminal Procedure (Chapter 25 Recognition of a person suspected of acts skill and determination of the suspect) investigator leaves only the collection of evidence and the definition of pre-qualification acts suspect. Thus, the Criminal Procedure Code of 2014 significantly expanded the powers of the prosecutor, since he will finally decide — there is the offense in the activities of the person or not (final qualification), there is a need to bring him to criminal liability or not.
On the face, the French model of the preliminary investigation, where the police will not accept enforcement of decisions relating to the legal assessment of the act, while remaining within the framework of classical logic Police. Legal assessment of the act is the result of pre-trial investigation, not a prerequisite, and is the responsibility of the prosecutor.
This model of pre-trial investigation deserves a lot of attention, however, a detailed analysis of Chapter 25 of the Criminal Procedure Code 2014 (Recognition and identification of persons suspected of acts of qualification suspect) showed that “the recognition of a person suspected” is nothing more than an “indictment”, but “the decision on qualification acts of the suspect” - “the decision on the person as a defendant”
This becomes clear if we compare the articles of Chapter 25 before the current Code of Criminal Procedure 1997 (indictment) and articles of Chapter 25 of the new edition of the Criminal Procedure Code 2014 (Recognition of a person suspected of acts and the definition of qualifications suspect). Technically, the term “defendant”, “culprits” are replaced by “suspect”, “face recognition suspect”.
Thus, in fact, “the indictment” is left in the hands of the investigator and the prosecutor was transferred to “preparation of indictment”.
At the same time, although the Code of Criminal Procedure 2014 is the prosecutor “allegedly” decides arraignment
or termination of criminal proceedings, but it is a decision is made on the materials provided by the investigator. It turns out that “fact” which deviation (guilty or not guilty) investigator to gather materials, the decision (to indict or to terminate the investigation) will take the prosecutor. It is obvious that if the investigator to gather evidence incriminating the person of a crime, the prosecutor is obliged to indict and send the case to court, and if the evidence would justify a person, the prosecutor will be nothing left — how to stop a criminal case.
In addition, the introduction of this provision is largely reverses the pre-trial investigation, as well as the procedure for applying to the suspect measures of criminal procedure compulsion, including preventive measures. Previously, the Criminal Procedure Code of the Republic of Kazakhstan acting permitted application of preventive measures only in respect of the accused, and only in exceptional cases — to the suspect. In other words, the use of preventive measures is possible only if the pre-trial investigation body there is sufficient evidence of guilt of the suspect, and this is reflected in the decision to bring charges. However, if indict the suspect is not an investigator, and the prosecutor, the question arises — how reasonable and lawful use of the suspect will be a preventive measure during pre-trial investigation, if he has not been charged, which will be done by and large only at the end investigation, when it goes to the prosecutor, and how it will provide constitutional rights and freedoms of the suspect?
In this context, the introduction of this provision in the Criminal Procedure Code, consider a clear mechanism for its implementation, which would fully ensure the constitutional rights and freedoms of participants in the criminal process. And while such a mechanism in the new edition of the Code of Criminal Procedure 2014 can not be traced.
In general, it is useful that person is subject to criminal liability in the course of pretrial proceedings has the status of a suspect reasonably, as only the court can decide on the guilt or innocence of a person.
In conclusion, it should be noted that the development and adoption of a new Code of Criminal Procedure of the Republic of Kazakhstan in 2014 is a necessary step in building the rule of law, but its introduction should be phased with the creation of practical mechanisms to ensure the rights and legitimate interests of persons involved in criminal process.
References:
1. Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by the Decree of the President of the Republic of Kazakhstan № 858 dated August 24, 2009.//[Electronic resource]. - Available from: htpp:// www.zakon.kz
2. Criminal Procedure Code of the Republic of Kazakhstan. - Almaty: Lawyer, 2014. - P. 356.
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