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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: [email protected]
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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with additional rights, which were mostly brought to life in the law enforcement and vital.
On the basis of the link between the criminal and criminal procedural law of the development of individual institutions of criminal procedural law should take into account not only the procedural, but also the material law. In particular, for full defining concept of the victim we should analyze not only the norms of procedural law, but also the specific offense.
Criminal Law, referring to the victims, in many cases, does not define this concept. This concept is defined in Art. 75 of the Criminal Procedure Code of the Republic of Kazakhstan, which states: “The victim is a person in respect ofwhom there are grounds for believing that he directly offense suffered moral, physical or property damage"
Because of the close relationship of the criminal and criminal procedural law the notion of victim should recognize the same for these two branches of law. However, criminal-law notion of victim and criminal procedural notion of victim, which being united in principle, cannot be the same for two reasons. Firstly, the real victim can not be recognized as such (for example, if the crime remains unknown) and therefore does not become a party to the criminal proceedings. Second, victims may be the person who has suffered harm or not suffered, but not as a result of the crime (eg, as a result of actions deranged). In this case, the victim in the substantive sense is absent, despite the presence of the appropriate procedural figure.
We should note the various functions of the concept of the victim in criminal law and criminal procedure. In The Criminal Procedure Law this concept is necessary in order to highlight the victim among other participants of the proceedings, give it special rights and responsibilities to achieve the objectives of criminal proceedings.
Criminal law has other important notion of victim. First, it necessary for determine the scope of criminal liability and, secondly, for differentiation and individualization of criminal responsibility.
Analysis of Art. 75 of the Criminal Procedure Code of the Republic of Kazakhstan make it possible to formulate the basic provisions relating to the concept of victim in criminal procedure law:
• Victims may be considered a natural person, but in the event of financial or moral harm — even a legal entity.
• The harm of crime can be moral, physical or property.
For participation to proceedings as the victim and by the
totality of the rights granted to this member of the process, a person must be recognized as a victim of crime in accordance with the law.
According to the Criminal Procedure Code of the Kazakh SSR victims recognized the person to whom the offender suffered moral, physical or property damage. Pointing to the infidelity of this formulation, Ya. O. Motovilovker noted that victims should not recognize the person, who established that he suffered harm, but the person against whom there is sufficient evidence giving rise to the recognition of him certain procedural rights [2, 64].
This point of view was supported by many other scholars, and was reflected in the Code of Criminal Procedure of Kazakhstan, which takes the victim as a person in respect of whom there is reason to believe that he was suffered some harm of crime.
Such a definition of victim is correct because it clarifies the distinction between the two concepts of the victim: procedural and material. R. D. Rahunov indicates: “Allowing the victim to the proceedings means only recognition him certain procedural rights, but not recognition established fact of causing harm, just as engaging as the accused person does not signify his conviction. Recognition of the harm is possible only in the judgment of the court” [3, 107].
V. P. Bozhyev in his dissertation draws attention to the fact that criminal law notion of victim and criminal procedural notion of victim has a connection, although there is no identity. In the criminal law sense, victims can be both physical and legal persons, the procedural law recognizes victims capable person [4, 18]. It should be noted that this view is not in accordance with the criminal procedure law.
These issues are worthy of approval in the renewed criminal procedure legislation of Kazakhstan, according to which, in the case of financial or moral harm, victims can be recognized as a legal entity. Earlier, before the entry into force of the Criminal Procedure Code of the Republic of Kazakhstan, according to the Criminal Procedure Code of the Kazakh SSR the legal entity, in the case of causing criminal damage to property, acted in the process not as a victim but as a civil party and used all the rights of the latter, which put legal person in an unequal procedural position of the victim - physical person. The civil claimant is not allowed to testify as victim. All claims of civil plaintiff took the form of plaint, the essence ofwhich is to specify what specific causes property damage and what is its monetary value. Authorities, which conduct the criminal proceedings, deprived important source of information that could be presented by the organization, enterprise, institution.
In addition, a crime organization could be caused not only property, but also non-pecuniary damage. The former law recognition of non-pecuniary damage left without procedural safeguards, while inflicting physical person or property or moral damage is caused by the recognition of his victims.
Criminal procedural law not only corrected the discrepancy in determining the procedural position of individuals and legal entities, but also contributed clarification to the concept of the victim at all.
In cases of crimes, the consequences of which were the death of the person, the rights of the victim carried close relatives of the deceased.
This question is the subject of debate among scholars in the legal literature.
Ratinov A. [5, 32] expressed that these persons can not be allowed to participate in criminal proceedings as victims. Criminal procedural law otherwise decided this issue by providing that in cases of crimes, the consequences of which was the death of the victim, the victim’s rights carried its close rela-
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Use of innovative technologies in criminalistics
tives (Art. 75 of the Criminal Procedure Code of the Republic of Kazakhstan).
V M. Sawicki and I. I. Poteruzha consider that the relatives of the deceased person involved in the process as his representatives, and can not be recognized as the victims, because between the crime and the alleged injury to the relatives of the deceased person has no immediate direct link. They believe that the rights of family members in this case are not violated, since the victim and his representative are in the process of equal rights. This is not entirely correct. Representative of the victim, as opposed to the victim, do not use one essential right: the right to have a representative in the process. If the relatives of the victim, in the case of his death, will be involved in the process as a representative of the victims, it would oblige them personally always act in the process and to deprive them of the opportunity to have their representatives.
Relatives of the deceased can not be regarded as his representatives, because the basis of representation (except the representation of disabled) should be based on the parties’ agreement, but this is not the case here.
Close relatives of the deceased person, if they were dependent on him, suffered material damage. But when they are not suffered material damage but suffered heavy pecuniary damage, which is much harder experiences of others who are
not close relatives of the deceased, they should be recognized as a victim of a crime and them should be submitted all the rights of the victim.
After the death of the victim, harm can be caused to some of his relatives. Do they all have to be recognized as a victim? This right can belong to several close relatives. If close relatives of the deceased suffered material damage, they all must be recognized as the victims and them must be explained the right to bring a civil action, because each of them can claim independent plaint and be recognized as a civil plaintiff. If the relatives of the deceased person suffered a pecuniary damage they should be recognized as victims. But if by any of the other relatives of the deceased received an application for recognition him as victims, this request should be granted. In this case, in the process will involve multiple victims.
Thus, covering all aspects of the concept of the victim, the notion of victim in criminal proceedings can be formulated as follows:
“If an individual or a legal entity suffered moral, physical or property damage, he recognized as victim. Also, the victim is a person in respect of whom the preparation of or attempt to commit a crime, he was put under threat of such harm. Moreover, with respect to an individual, all three types of harm are possible, but in respect of the legal entity only two types- material and moral damage"
References:
1. The Constitution of the Republic of Kazakhstan. - Almaty, August 30, 1995. - P. 30.
2. Motovilovker Ya. O. Nekotorye questions of the theory of Soviet criminal procedure in the light of the new Code of Criminal Procedure. - Part 2 of Kemerovo. - P. 188.
3. Rahunov R. D. Participants criminal - procedural activities. - M.: Gosyurizdat, 1991. - P. 190.
4. Bozhyev V P. The victim in the Soviet criminal trial. Author’s abstract of the master’s thesis. - M., 1963.
5. Ratinov A. Participation of the victim in the preliminary investigation//Socialist legality. - 1959. - № 4. - P. 67.
Shopabaev Batyr Abenovich, Senior teacher of department of criminal law, criminal trial and criminalistics of Kazakh national university of al-Farabi, Almaty Republic of Kazakhstan
Kenesov Zhandos, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: [email protected]
Use of innovative technologies in criminalistics
Abstract: This article discusses the use of innovative technologies in forensic science. Keywords: biometric, security, identification, security.
The development of information technologies and their application in medicine, science, industrial sphere forever changed modern society. The laws of society must obey and to acquire the data changes. Since PIN-codes, passwords, identification photographs, credit cards and magnetic signatures are an integral part of modern life, and the problem
of information security one of the most urgent. Currently greatly increased interest in the topic of digital identity that is accepted as associated with the growing threat of international terrorism, increase the volume of trade transactions conducted via global computer networks, particularly the Internet.
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