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Problem of the expansion of judicial control at the pre-trial stage of criminal proceedings
Chazhabaeva Aynur Bakytkaliyevna, Al-Farabi Kazakh National university, undergraduate of chear of Criminal Law, Criminal Procedure and Criminalistics, the Faculty of Law E-mail: ainur.bakhytkali@mail.ru Mukhamadyeva Gulzhan Nusupzhanovna, Kazakh National University named after al-Farabi, candidate of jurisprudence, the Faculty of Law E-mail: B_ali_77@mail.ru
Problem of the expansion of judicial control at the pre-trial stage of criminal proceedings
Abstract: In the article analyzed possibility of expansion of judicial control within the framework of criminal trial. Proceeding possibility of introduction of new position is examined within the framework of the court.
Keywords: judicial control, expansion of judicial control, criminal trial, department judicial, pre-trial production, judicial reform, functions of justice, legality, court, criminal procedure, inquisitional judge, law and order, criminal case, justice, Law, office of public prosecutor, Supreme court, plenary powers of court, Constitution, rights and freedoms, complaint, reform, state, investigation, investigation, crime, citizen, investigator, organs of inquest.
At its substantive purpose judiciary is a specific form of state activities in their respective spheres of society. The need of the state in the judiciary is defined as the necessity to resolve recurrent disputes and the necessity to protect the constitutional order, rights and freedoms, the legitimate interests of man and of civil society.
The Constitution of the Republic of Kazakhstan as a key priority determines the rights, freedom and legitimate interests of man and citizen, thus perpetuating the importance of judicial protection, one of the mechanisms which is judicial control.
As a general rule the essence of judicial control is to verify compliance with the objectives of monitoring results: the courts verify that the activities of state bodies and their officials and the laws of their tasks; record deviations from the goals and ways to achieve them; take measures to prevent and bring to responsibility the guilty persons.
Judicial control is primarily aimed at improving the efficiency of criminal investigations, as well as raising the level of citizens’ rights protection in criminal procedures, which provide optimal conditions for the investigator to perform the main functions, consisting in the prevention and investigation of crimes.
It is believed that the expansion of judicial control at the pre-trial stage of the criminal process in the proposed form would serve a greater enforcement of constitutional rights guaranteed by the investigating authorities, which generally serve to strengthen the rule of law in the Republic of Kazakhstan [1].
The current Criminally-Remedial Law of the Republic of Kazakhstan in art. 139 CPC RK has determined that a preventive measure is elected to prevent the possibility to the accused person to escape from the inquiry, preliminary investigation or trial, to prevent the objective investigation and trial proceedings, to continue to engage in criminal activities and, to ensure its execution after sentencing. The list of mentioned
circumstances in the theory either called “misconduct” or purpose, which is achieved by the institute of preventive measures.
In accordance with Art. 140 CPC RK, the Preventive measures are the following: recognizance not to leave and proper conduct; personal surety; placing a serviceman under the supervision of the commander of a military unit; the return of the minor under the supervision; pledge; house arrest; detention [2]. Before turning to the issue of arrest sanctioning, it is necessary to find out what the arrest is a preventive measure.
Detention is the strictest kind of procedural measures of restraint. Preventive measures are a form of coercive measures that apply to a person involved in the commission of a crime, in order to ensure his presence in the criminal process. Preventive measure is to limit the personal freedom of the accused approved by the prosecutor or the court decision by placing it in the pre-trial detention in the course of criminal proceedings Detention as a preventive measure — it is not a criminal offense the accused (alleged criminal). In this case it does not have punitive value and it has only preventive tone, it applies not to the guilty but to the accused (in exceptional cases — to the alleged). Detention creates optimal conditions for the participation of the accused in criminal proceedings, to suppress his opposing to the normal course of an investigation or proceedings before a court, in order to prevent the defendant attempts to hide from the inquiry, investigation, trial, to prevent the establishment of truth on criminal case, re-engage in criminal activity, as well as to ensure the execution of the sentence.
The principal direction of the current criminal procedural legislation is to further the implementation of the criminal justice system of additional procedural means and mechanisms to ensure the rights, freedom and interests of the individual. A number of theorists and practitioners believe that one of these mechanisms could serve as a further extension of judicial control over the pre-trial activity. However, the expansion
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Section 12. Criminal law and criminology
of judicial control should not limit the prosecutors control in this area, since one of the main functions of the Prosecutor’s Office is a control function.
Nowadays, in the scope of further expansion of judicial control the notion is expressed about the transfer of prosecutor’s power on authorizing a number of proceedings to justice that limit the constitutional rights of man: arrest authorizing, house arrest as a preventive measure, the extension of detention and others. Proponents believe that adjudgement allows conduction of these proceedings, to a greater extent take into account the legitimate interests of citizens than prosecutor’s sanction, amenable for uncovering of crime and performing prosecutorial functions.
Inconsistency of this point of view, in which they try to present the prosecutor not as a guardian of the law, whose aims are to provide accurate and consistent implementation and enforcement of the law, but as a person who is primarily interested in the indictment result of the investigation, first of all, the prosecutor is not the person amenable for uncovering of crime
Uncovering of crime and crime investigation is the immediate task of inquiry and preliminary investigation. The Prosecutor’s Office, in the framework of its supervisory powers, shall not be obliged to establish the circumstances, subject to proof in a criminal case; it only provides procedural guidance for the preliminary investigation, which, in particular, is expressed in giving instructions to a preliminary investigation, authorize a number of legal proceedings, participation in the production of certain investigative actions, in the abolition of unlawful decisions of junior detective, Investigator, head of the body of inquiry and the investigation department in consideration of complaints about their actions and decisions and the implementation of other powers stipulated by law.
Secondly, an indication that the prosecutor performs only prosecutorial function is incorrect and wrong. In the theory of criminal proceedings the indictment (indictment activities) means a series of actions that expose a person committed a crime and enforce punishment to him.
In accordance with Art. 62 Code of Criminal Procedure of the Republic of Kazakhstan, the prosecutor is the official body, performing oversee legality of operational and investigative activities, inquiry, investigation, adjudgement, as well as criminal prosecution at all stages of the criminal process within its competence. Specifying the powers of the prosecutor in the preliminary investigation stage, Art. 197 Code of Criminal Procedure states that the prosecutor conducts criminal prosecution and supervision of legality in criminal matters [3]. Law of the Republic of Kazakhstan “On Prosecutor’s Office" refers oversee legality of the inquiry and investigation and prosecution to the main activities of the prosecution [4]. These two activities are different forms of prosecutor’s execution of basic constitutional function, which is to oversee legality. Therefore, prosecutor’s supervisory activity is the main mean, and the charge is just one of the diverse means by which the prosecutor follows the law, and in particular to ensure that in the
course of criminal procedure the rights, freedom and interests of the individual were not violated
The conclusion is that the statement of court meets legitimate interests and rights of citizens, than the prosecutor is initially incorrect.
Judicial control and public prosecutor’s supervision in pretrial proceedings are two independent methods aimed at ensuring the rule of law in the activities of inquiry and investigation, which should be used together, but not to be canceled out. Judicial review can not replace the public prosecutor’s supervision. As the confirmation of this we can cause a number of reasons:
1. Prosecutor performs procedural aspects by investigation. Realizing their powers to ensure the legality of the preliminary investigation, the prosecutor overseeing the investigation, and it helps him to take the right decision in the case, particularly, in arrest authorizing. Court procedural guidance for the investigation does not perform. Respectively, it is more complicated to court to take the right decision in a criminal case in pre-trial proceedings.
2. The supervising prosecutor performs oversee investigation of a particular criminal case. He receives all necessary information on this case. Incoming information gives to prosecutor more or less complete picture of the produced investigation, which helps to make the right decision. Carrying out judicial control over pre-trial proceedings, it is not necessary to the same judge resolve all the questions arising from the one criminal case. In connection with the existing order of actions appeal and decisions of the criminal prosecution, the complaint by one and the same case may be subject to review even by different courts. Undoubtedly, all this will affect to the quality of judicial control in the pre-trial proceedings, and particularly, to the use of detention as a preventive procedure. Since not having understood the essence of a criminal case, the court (judge) unreasonably can withheld or on the contrary, allow to apply arrest as a preventive measure.
3. Judicial control due to the specifics of judicial activity can be carried out only occasionally: when considering complaints against actions and decisions of the prosecution or when authorizing certain procedural actions (eg, arrest). Prosecutorial supervision is carried out in the pre-trial proceedings since the initiation of criminal proceedings till the direction of the finished production criminal case to the court or a decision to discontinue criminal proceedings, which contributes to timely detection and prevention of law violations.
4. Prosecutorial response to the questions, emerging in connection with the investigation are always quicker comparing to justice. This is due to the fact that supervision is the main content of the Prosecutor’s Office. Judicial control is not related to the main function of the court to which the law imposed a difficult and demanding task of administration of justice. Therefore, in spite of everything, others, except for the administration of justice, the functions of the court will act in the background.
Court, that is the subject designed to protect the rights and freedoms of citizens to administer justice in the state is not
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Procedural status of victim in criminal proceedings
burdened with an accusatory manner, it is equally interested in respecting the rights of each party. In contrast to the prosecutor’s office, among other tasks responsible for the confrontation of crime, the court has no common with the prosecution of procedural interests. In the administration of his power, he is guided only by the law and conscience (unfortunately, the legislator does not give an official interpretation of the concept of “conscience"). However, the transfer authorization of arrest fully within the competence of the judiciary is fraught with some serious problems. Like the prosecutors who are in mutual departmental depending on judicial impartiality can also affect the position of “investigative” judge, who gave consent for the use of the accused’s arrest as a preventive measure.
If to provide the right to authorize the arrest and detention only to the court, so in this case position will not be implemented p. 2, Art. 16 of the Constitution of the Republic of Kazakhstan to authorize the prosecutor’s arrest and detention. Ignoring this constitutional provision will mean
a violation of one of the most important legal principles — constitutional law, binding the legislator to the Constitution means that the existence of laws that are in contradiction with — inadmissible.
Thus, analysis of the Criminal Procedure Code of the Republic of Kazakhstan, in terms of implementation in the criminal justice figures investigating judge, demonstrates the importance of this institution, but at the same time the Constitution of the Republic of Kazakhstan has supreme legal force in the territory of the Republic of Kazakhstan and it is the fundamental law of our state; the authorization of decisions and actions that restrict the rights and freedoms of citizens, is not peculiar to the legal nature of the court, because the sanctions for detention will give the court accusatory character; by authorizing judge bind himself with the accepted decision at the investigation, this would violate the principle of objectivity and impartiality of the administration of justice.
References:
1. Question about the prospects of judicial control expansion in criminal proceedings. - [Electronic resource]. - Available from: http://www.zakon.kz.
2. Procedure Code of the Republic of Kazakhstan dated July 4, 2014.
3. Procedure Code of the Republic of Kazakhstan dated December 13, 1997.
4. Law of the Republic of Kazakhstan «On Prosecutor’s Office» dated December 21, 1995.
Sharipova Asel Bostanovna, Kazakh National University named after al-Farabi, candidate of jurisprudence, the Faculty of Law Tairov Zairzhan Adilzhanovich, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: B_ali_77@mail.ru
Procedural status of victim in criminal proceedings
Abstract: The purpose of this article is to highlight the procedural status of the victim as a party to criminal proceedings in accordance with the criminal procedure legislation of the Republic Kazakhstan.
Keywords: rights, criminal proceedings, procedural law, the criminal Procedure Code.
The Constitution of the Republic of Kazakhstan contains provisions, concerning the inalienable human rights, security and legal protection of individuals, whichare belong to everyone from birth, and recognized as absolute and inalienable; everyone has the right to recognitionhis personality and has the right to defend their rights and freedoms by all means not contradicting the law including self-defense [1, 5].
It all comes down to the fact that any person in the case of risk of harm is criminal, having a minimum volume of rights and freedoms which established in the Constitution of the Republic of Kazakhstan, have the right to require judicial protection of their violated rights and freedoms, when applying to the relevant public authority. Since the judgment when a person is recognized as injured body, the criminal proceedings, the per-
son whose rights and freedoms have been violated by criminal act and caused some damage, becomes an active participant in the criminal proceedings, namely the victim and begins to have a set of rights and obligations enshrined in the criminal Procedure Code of the Republic of Kazakhstan (v. 75).
The rights and duties of the victim determine its procedural status in criminal proceedings. During appearance of victim in his procedural status was different. In general, the procedural status of the victim is determined by such factors as the level of economic development, public-political regime, form of government, and more. With the development of democratic principles in the country, the procedural position of the victim expands; he turned from a passive participant of the criminal process to an active participant. He was endowed
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