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Procedural activity of the court in adversarial criminal proceedings
In this connection it is necessary to unify the language of threats in the criminal law. The terms “terrorism" and “extremism” are very multifaceted, resulting in blurred the line between law these concepts.
In 2013 the Senate approved the bill “On amendments and additions to some legislative acts of Kazakhstan on combating terrorism” It is offered to review the key concept of the term “terrorism”. Modern terrorism, by general repute of experts, should be regarded not as a specific criminal act, but as a complex social and political phenomenon. Therefore, the bill provides a new definition of terrorism as an ideology of violence and practices of impact on decision-making by public authorities, local governments or international organizations, by committing, or threats of violence or other criminal acts involving the intimidation of the population and aimed at serious personal injury, society and the state” [6].
Later, in section 5, Article 1 of the Law of the Republic of Kazakhstan dated July 13, 1999 “On Combating Terrorism” terrorism is defined as “an ideology of violence and practices of impact on decision-making by public authorities, local governments or international organizations, by committing, or threats of violence or other criminal acts involving the intimidation of the population and aimed at serious personal injury, society and the state” [7].
In our opinion, based on the analysis of the legal interpretation of the term “terrorism”, it follows that today considered definition completely absorbs the definition of “extremism”. Thus, the fight against new challenges and threats has not so far a proper legal framework in the Republic of Kazakhstan. In other words, the anti-terrorism legislation of the Republic of Kazakhstan has blurred the concept of counter-terrorism.
References:
1. Presidential Decree of the Republic of Kazakhstan ‘‘On state program on combating religious extremism and terrorism in the Republic of Kazakhstan for 2013-2017”.
2. Ovchinsky V S. The problems of fighting against terrorism in the modern world. - M., 2001. - 124 p.
3. Law of the Republic of Kazakhstan “On Countering Extremism” dated 18 february, 2005 (as amended on 11.07.2014)/ [Electronic resource]. - Available from: http://online.zakon.kz/Document/?doc_id=30004865
4. Ozhegov S. I. The Explanatory Dictionary of Russian language. - М., 2001. - 1012 p.
5. The Criminal Code of the Republic of Kazakhstan on the 3.07.2014 date (with amendments and additions on 25.01.01)/ [Electronic resource]. - Available from: http://online.zakon.kz/Document/?doc_id=31575252
6. Senate of Kazakhstan approved amendments to the anti-terrorist legislation//Tengrinews.kz. 06.12.2012.
7. Law of the Republic of Kazakhstan “On Countering terrorism” dated July 13, 1999 (as amended on 07.11.2014)/ [Electronic resource]. - Available from: http://online.zakon.kz/Document/?doc_id=1013957
Bersugurova Laziza Shaltayevna, Kazakh National University named after al-Farabi, Doktor of Law, the Faculty of Law Baydalina Meruert, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: B_ali_77@mail.ru
Procedural activity of the court in adversarial criminal proceedings
Abstract: In the article the general rules of judicial activity of court are analysed in contention criminal procedure. An accent is done on the changes brought in criminal procedure by a new legislation. Tasks and plenary powers are examined ships following from principle of contentionness. The terms of establishment of equality of rights of parties are analysed in the Kazakhstan criminal trial. A comparative analysis is conducted with a former legislation.
Keywords: criminal procedure, court, judicial activity, justice, contentionness, judicial control, inquisitional judge.
The Constitution of the Republic of Kazakhstan proclaims principles such as justice in the Republic of
Kazakhstan shall be exercised only by the courts, the judges are independent and subject only to the Constitution and laws, jurisdiction is based on the equality of the parties. It is not possible to further judicial reform in Kazakhstan without improving the criminal procedural law. As a strategic
objective defined development of an independent judiciary able to reliably protect the rights and freedoms of man and citizen. As the key challenges placed, improving judicial order, overcoming accusatory of courts, the eradication of judicial red tape and fraud during the pre-trial, trial production, improvement of adversarial proceedings, the improvement of pre-trial proceedings in criminal matters, etc.
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Section 12. Criminal law and criminology
The implementation of these tasks is impossible without taking into account the requirements of international legal standards and practice of the European Court of Human Rights. Thus, the study of procedural activities of the court and its legal status as a major participant in adversarial criminal proceedings in a radical transformation in the country is of particular relevance. There is no doubt that the adopted July 4, 2014 a new Code of Criminal Procedure of the Republic of Kazakhstan has secured a democratic principle as the implementation of the proceedings on the basis of equality of the parties, and the legislature has defined the role and importance of the court in it. However, regulation of such an important principle in the criminal process has generated a lot of questions related to the mechanism of its implementation, as representatives of law enforcement, in particular judges, prosecutors can not break away from the stereotypes of the past, “inquisitorial” process. The spread of the principle of “adversarial” only in the judicial stage of the criminal process, as time has shown, does not give the expected result due. The predominance of elements investigative process in pre-trial stages and a lack of judicial control creates a lot of problems in the field of human rights, freedoms of citizens involved in criminal proceedings.
In this connection, is required to investigate the most important and urgent problems arising in the course of procedural activities of courts in adversarial criminal proceedings. The most relevant are presented for the following tasks: based on the study of the genesis of the procedural activities of the court to investigate the subject and methodology of judicial activity; clarify the status of the court in adversarial criminal proceedings; clarify the procedural functions of the court in adversarial criminal proceedings; develop proposals to improve the regulation of the court in the pretrial and trial stages of the criminal process in order to further strengthen its competitive started. The new Criminal Procedure Code defines a new subject of criminal proceedings — “investigating judge”, marked the new powers of the investigating judge in pre-trial proceedings, proposed solutions to a number of controversial issues related to the activities of the court in the trial of criminal cases. However, further analysis needs not only the conceptual and categorical apparatus, but also the issues of interaction of the court by the prosecution and defense, as well as other participants in the criminal process, the ratio of the concept of justice and judicial review, the court procedural status at certain stages of the criminal process. A retrospective analysis of the origins of the teachings and beliefs of the procedural activities of the court in an adversarial criminal trial shows that the legislators of all countries regardless of the form of government, state government, political regime and legal system are its values and to this day. Moreover, mankind has not invented a more advanced and civilized model of criminal procedure, as adversarial, where the court is the guarantor of a balance between the interests of the individual, society and the state. In adversarial criminal trial court takes a leading position and acts as an independent arbiter, which
aims to organize and ensure equal competition parties, by establishing, studies obtained evidence in a criminal case, as well as creating conditions for the realization of the rights and obligations of parties to the proceedings. Court is in adversarial criminal trial function of administration of justice and judicial control. Justice is an activity of the court to review the criminal case on the merits and the decision to recognize the person guilty or not guilty of statutory procedural form. Judicial review — this is a test carried out by the court to establish the legality and validity of actions (inaction) and decisions of the investigator, the prosecutor in the manner prescribed by law and initiated by parties to the proceedings. As a rule, it includes the following powers of the court:
- monitor the application of coercive procedural measures;
- control of the legality of investigative actions affecting the constitutional rights and freedoms of individuals involved in criminal proceedings;
- legalization and deposition data collected by the parties during the investigation as evidence, that is acceptable for use in legal proceedings;
- consideration of complaints and petitions of the parties and participants in the criminal process steps, decisions of the investigator, prosecutor;
- approval of procedural agreements, such as plea bargain, procedural cooperation and conciliation.
The active participation of the court in the collection, verification and evaluation of evidence must be preserved for the court, as it affects the goodness of the trial, since the knowledge of the circumstances of the criminal case — a direct duty of the court. Such knowledge can be carried out only by proof, namely, for the formation of inner conviction and the further study of the judicial final decision in the criminal case. But it is necessary to observe the court some of the requirements:
- a manifestation of activity in passivity of the defense, prosecution and other stakeholders;
- preventing the indictment or other bias;
- the establishment of objective truth in the case;
- evidence of active vessels within reason and within the limits of the charges.
It is interesting to provisions governing the pre-trial proceedings in criminal procedural law of Ukraine, where an institution of the investigating judge. In accordance with the provisions of Chapters 3 and 9 of the Code of Criminal Procedure, the investigating judge has five supervisory powers: taking steps to ensure the production of, and authorizes individual conducts investigations, authorizes the most covert investigative actions, considering the complaints of the prosecution at the pre-trial stage of the process. By examining actions performed by the investigating judge are:
- examination of the witness, the victim and the deposition of these indications for the main trial;
- authorizing a search of the home or other possessions;
- the appointment of expertise. Moreover they may be initiated by both parties.
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“Fight” or “mechanism to counter”
In criminal proceedings in France during the preliminary investigation, the investigating judge is involved, which at the end of investigative inquiry conducted under the supervision of the prosecutor, initiate an investigation.
In Germany under investigation participates coroner that the investigation does not hold, and deal with complaints about the actions of the inquiry, authorizes actions restricting constitutional rights and freedoms and to legalize the evidence.
The appearance of the procedural figure of the investigating judge with the relevant procedural powers to exercise control over the legality of pre-trial creates real opportunities parties to compete on equal terms. So far, the district court judges had certain powers, but real control over the investigation had not. How figuratively put D. K. Kanafin — “judges have become Keeper of the Seals”, their activities snaps authorization of arrest [1]. Moreover, if all leave in the previous form, then there would be a lot of problems related to ensuring the independence, impartiality and fairness of the judicial activities in general. For example, long remained an open question about the participation of a judge authorizing the arrest, in the further consideration of the criminal case on the merits. Legislator in circumstances eliminating the judge from the case, did not provide for such a case. Although the court giving consent to the arrest of the accused, should not
participate in the subsequent stages of the criminal process. The name “investigating judge” already means that his powers are terminated with the transfer case to the court in a criminal case on the merits.
The new Code of Criminal Procedure has already provided disqualification of a judge, if he was involved in the case as investigating judge, and also deal with complaints and protests against the decision of the investigating judge.
One of the international experts G. Zh. Suleimenova noted that “It should be recognized that in general the idea of creating such a subject process deserves unconditional support, since it is a first step towards institutionalizing the Institute of judicial review. This step is determined by the official responsible for the administration of this function are specified not only by his powers, but also the procedure of interaction with him the other participants in the process. Occurs even if preliminary, are not yet clear, but the separation of the functions of justice of the function of procedural control of law and respect for human rights” [2].
However, the introduction of the institution of the investigating judge continues to raise many questions. For example, what about the prosecutor’s supervision, in which the court should be the investigating judge, logistics, distribution and other loads.
References:
1. Kanafin D. K. Sovershenstvovanie pravovogo statusa advokata v svete razrabotki novogo ugolovno-protsessual’nogo kodeksa Respubliki Kazakhstan//Yurist. - 2012. - № 12. - S. 47-55.
2. Suleimenova G. Zh. Zaklyuchenie nauchno-pravovoi ekspertizy Kontseptsii proekta Ugolovno-protsessual’nogo kodeksa Respubliki Kazakhstan//Yurist. - 2012. - № 12.
Dzhansarayeva Rima Yerenatovna, al-Farabi Kazakh National University, Head, Chair of Criminal Law, Criminal Process and Criminalistics, Doctor of Law, Professor E-mail: jansarayeva@mail.ru
“Fight” or “mechanism to counter”
Abstract: The article analyzes the relationship between the concepts “fight against crime” and “mechanisms for combating crime”. The practice of the fight against crime and its scientific basis suggest the appropriateness of using along with the term “crime control” and the phrase “a mechanism to crime”, which indicates the possibility of using as to affect the crime of different tools and techniques and their relationship together. In addition, it emphasizes the sequential progress of their application in order, it is adequate as a crime as a whole and its individual species.
Keywords: criminology, crime, fight against crime, mechanism to counter crime.
In criminology uses various terms to describe the activities of the state aimed at neutralizing such negative sociolegal phenomenon as crime. The most common of these is the term “struggle”. In etymological terms it means the desire of certain persons in conflict with the opposing party, destroy it and defeat. In this case, this kind of process involves overcoming numerous obstacles, the resistance of the opposing side, which is actively pursuing its interests. This gives the
fight shade of permanent conflict that has lasted until the moment when one of the parties to the maximum is not winning, but at a minimum — establishes control over the stranded weaker opponent.
Supporters of the projection of the term “struggle” believe that, firstly, the warring parties are the state, relies on the assistance of various kinds of non-state entities and individuals, as well as representatives of the criminal environment,
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