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4. Enhancement of an electronic clerical work, control and 5. Implementation of the Electronic government of the Repub-
monitoring of activities of government employees; lic of Kazakhstan — egov.kz.
References:
1. The law of the Republic of Kazakhstan of - November 18, 2015 "About anti-corruption" URL://http://online.zakon.kz
2. The presidential decree of December 26, 2014 "About approval ofAnti-corruption strategy of the Republic of Kazakhstan for - 20152025 " URL://http://anticorruption-zko.gov.kz
3. The presidential decree of October 5, - 2016 "About some questions of the Agency of the Republic of Kazakhstan for public service and to anti-corruption and modification and additions in some acts of the President of Kazakhstan" URL://http://online.zakon.kz
4. The budget code of the Republic of Kazakhstan of - December 4, - 2008 URL://http://online.zakon.kz
5. The law of the Republic of Kazakhstan of - January 6, - 2011 "About law-enforcement service" URL://http://online.zakon.kz/
6. Table of results: corruption perceptions index - 2015 URL://http://www.transparency.org/cpi2015
7. In Kazakhstan in the first half of the year - 2016 1 644 facts of corruption offenses URL://http://forbes.kz/news/2016/08/23/new-sid_119 016 are elicited
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-272-274
Isaeva Klara Asangazyevna, Doctor of Law, Professor Kyrgyz National University named after Jusup Balasagyn E-mail: n.abdykarimova@mail.ru
Problems of realization of the principle of competitiveness and equality of rights in separate countries of the CIS at modern stage
Abstract: based on the analysis of different points of view considering the experience of separate CIS countries, the article reveals the problems of realization of the principle of competitiveness and equality of rights of the parties at modern stage. Keywords: principles of competitiveness, national legislation, criminal process, attorney, attorney investigation.
As it is correctly indicated, «... the provisions about the rights and freedoms of a person are defined by the Constitution of any democratic state. Hence, the rights and freedoms of the man are
considered the supreme value of the society and the state in the
Constitutions of Kyrgyzstan (article 16), Russia (article 16) etc. No one argues that this institution is one of the fundamental bases of the specified states. Modern standards in the sphere of rights and freedoms of the person reflected not only in the norms of international law but also in the national legislation ensure the protection from unlawful external interference and promote the strengthening of the status of the individual themselves. It should be noted that in the course of a long confrontation between the person and the authority, there is a search for an optimal model of their interrelation; the volume of rights and freedoms of the citizens of the states was changing under the effect of that fact. And this most difficult perpetual problem remains unsolved till date due to various reasons of both objective and subjective nature » [1, P. 338-339].
Thus, on the assumption of today's realities, we deem correct that the critical rethinking requires the principle stated in the Constitution of CIS states that «Legal proceedings are performed on the basis of competitiveness and equality of rights of the parties», which is a guarantee of the protection of rights and freedoms of the citizens' interests. This provision became a new stage in the development of the criminal process.
Currently, the analysis of different sources shows that the opinion of scientists is divided both in the understanding of the very mechanism of realization of the principle of competitiveness and in the issue of its circulation at the stage of the criminal process.
T. T. Shamurzaev emphasizes correctly: «... the development of competitive beginnings in the criminal legal proceedings in the Kyrgyz Republic is related to a range of problems. These problems
are determined by inappropriate legal regulation of the principle of performance of legal proceedings based on the competitiveness and equality of rights of the parties as result of wrong understanding of the essence of this principle by the legislator. The consequence of it is the respective wrong realization of criminal procedure norms in the practice of law application, which implies the breach of rights and legal interests of the participants of the criminal process» [2, P. 44].
For instance, speaking about the drawbacks of the activity of investigative authorities during the procedure of criminal cases in the sphere of finances and credits, it is underlined that «... often, investigative authorities make baseless decisions on an investigated case due to the following circumstances: a) the limitation of the period of decisionmaking about the institution of criminal proceeding at the stage of pre-investigation check, where the examination of available materials and its evaluation are carried out; b) difficulties are also related to the wrong evaluation of the action of the participants of a criminal event by the investigator at the stage of the institution of a criminal proceeding; c) low knowledge of the investigators in the sphere of finance and credit relations and weakening of professional nucleus (including the conduct ofnumerous «sponsored» reforms); d) uneven distribution ofload on investigators, which leads to the procrastination of the investigation period as well as groundless termination or suspension of the legal proceeding [3, P. 34]. Nevertheless, such situation is typical for the other category of cases investigated by the investigative authorities, which cannot not affect the realization of the considered principle as result ofwhich the rights of the citizens are breached.
The analysis of the provisions of criminal procedure legislation of the CIS countries shows that in these countries, the criminal proceeding process is mainly mixed, i. e. at the stage of pre-trial proceedings, it has investigative character with the elements of competitive-
Problems of realization of the principle of competitiveness and equality of rights in separate countries of the CIS at modern stage
ness, and the principle of competitiveness applies to the trial stage.
For instance, the Criminal Procedure Code of the Republic of Belarus presents mixed type of criminal process, where the notion of competitiveness refers only to trial proceedings, namely, there is a prosecution party and a defense party. As for the employees of the bodies of preliminary investigation, investigation, prosecution service, which carry out prosecution service, the Belarusian legislator does not refer them to the defense party. Hence, concerning these employees of state bodies and officials, there is a principle of comprehensiveness, completeness and objectivity of research of the circumstances of a criminal case, which is specified in the Criminal Procedure Code of the Republic of Belarus.
However, such position of the Belarusian legislator causes contradiction with the principle of competitiveness, because, in such approach, the investigator bears both the function of prosecution and defense. Such uncertainty of the procedure status of the investigation bodies, naturally, implies significant impairment of the person as well as generates doubts about the objectivity of real enforcement of rights of the personality involved in the sphere of criminal proceedings. This is typical for other CIS countries as well (Kazakhstan, Kyrgyzstan and Russia).
S. M. Darovskikh [4, P. 62] and I. L. Trunov [5, P. 190] reckon that the principle of competitiveness shall affect both the stage of trial proceeding and the stage ofpreliminary investigation. Herewith, the indicated authors do not consider that at the stage ofpre-trial proceedings, the prosecutor and the defense party, including the accused, cannot have equal rights because of the specifics of the function laid on the specified participants by the criminal process. Hence, a different degree of expressiveness of their participation in the proving with regards to the investigated case is observed. Thus, the inequality of parties at this stage and the presence of the elements of competitiveness only in this case are noted in legal literature sources [6, P. 11-13].
Undoubtedly, the stage of pre-trial proceedings for the recognition and realization of the principle of competitiveness is being subjected to an attempt to implement different component into it by the attorneys. Thus, the main proposals include: a) introduction of a parallel investigation; b) expansion ofjudicial control at the given stage, or the establishment of the institute of court investigators.
The very idea of a parallel investigation provoked ambiguous reaction among scientists; there are both supporters and opponents of such «innovation». Analyzing the opinion of Russian and Belarusian scientists, namely the supporters of attorney investigation, it can be noted that their main arguments had the following provisions: firstly, the order of collection of evidence by the attorney should be confirmed by the legislation, which provides the ground to recognize them as applicable and hence, answers the procedure criterion of evidence; secondly, since, according to the Criminal Procedure Code, the defense attorney is an independent participant of the criminal process, they can collect the evidence for the case independently; thirdly, independent collection of evidence for a criminal case should be a procedure activity of the defense attorney.
The analysis conducted by us showed that the main positions of the supporters of such idea are the following propositions:
• establish the norms in the CPC providing an opportunity to carry out private investigations by the parties, including private detectives; herewith, for the purpose of ensuring the guarantees of legitimacy in the collection of evidence, stipulate the participation of an investigation body as official observer;
• introduce a chapter «Conduct of a private investigation» in the CPC, and, in order to create guarantees of authenticity of the data collected by the attorney, stipulate the responsibility for them in case of their falsification;
• entrust the defense party with the preparation of acquitting verdict with the respective conclusions or verdict with the grounds for the reduction of responsibility of the client;
• attorney's necessity to conduct a private investigation in the interests ofprotection of the accused's rights, but, herewith, one should not lay an obligation on them to establish objective truth;
• include the provisions changing the content of admissibility of evidence in the norms of the CPC, because the conditions of their admissibility, collected by the investigation bodies, will differ from the collection of evidence by the defense party (for instance, the defense attorney cannot apply coercive measures in the course of such procedure activity).
At the same time, the critics of the parallel investigation were against the empowerment of attorneys with such powers [7, P. 46]. S. A. Sheifer believes that the conduct of «private investigative activities» contradicts the basics of proving established in the criminal process [8, P. 97-103].
Thus, having studied the main arguments of the opponents of the introduction of norms stipulating the behavior of a parallel attorney investigation into the CPC, the following vulnerable aspects of its inconsistency can be outlined:firstly, forcible implementation of such construction into the norms of criminal procedure law at the stage of pre-trial proceedings without real absence of such prerequisites today (social, economic, legal) will not lead to a result expected by the state (including legal community); secondly, it can lead to an unhealthy competition, including inequality in respect of protection of persons involved in the sphere of criminal prosecution due to different financial abilities; thirdly, it should be taken into consideration that evidence for the case obtained by the attorney in the course of such investigation creates prerequisites for their selective reflection in the acquitting verdict, because they can also have a prosecutorial bias. Moreover, separate ones will be excluded due to the doubt of the defense attorney in respect of possible evaluation and interpretation of the documents obtained by them by the court; fourthly, compulsory active direct participation of the defense attorney will prevent the conduct of necessary urgent investigative activities; fifthly, the difficulty: a) in the ensuring of guarantees on the authenticity of evidence obtained by the defense attorney; b) provision of authoritative powers to the attorney, which are sometimes required in the course of collection of evidence (in the application of coercion); c) impossibility to reproduce the conditions under which such procedure actions were performed after the attorney obtains required evidence; d) their activity on the collection of actual material implies the empowerment of them with the properties, both relevancy and inadmissibility of evidence, because such activity of the defense attorney is performed in a way typical for them.
It is correct that from the moment of collapse of socialistic system, in the CIS countries, a need to build unique legal systems based on the principles of observance of rights and freedoms of the man and the citizen, especially in the sphere of criminal procedure relations, came up. It is consistent that the governments of CIS countries tried to minimize negative consequences of conducted and planned legal reforms, for the purpose ofwhich, 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 [9, P. 130].
One of such directions was, as it is known, the implementation of competitiveness of the legal process widely used in the far-abroad countries. However, at the same time, there are still problems today, some of which were considered by us, and further scientific studies and search of optimal variants of its implementation are required.
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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: n.abdykarimova@mail.ru
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
