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Realization of the right to personal integrity in the application of coercive procedural measures
Mukhamadyeva Gulzhan Nusupzhanovna, Kazakh National University named after al-Farabi, c andidate of jurisprudence, the Faculty of Law
Bayndyna Maynur Okanovna, Kazakh National University named after al-Farabi, senior lecturer, the Faculty of Law
Baybek Marya,
Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: [email protected]
Realization of the right to personal integrity in the application of coercive procedural measures
Abstract: The article examines the legal nature of the principle of inviolability of the person as a fundamental guideline and start the criminal process of the Republic of Kazakhstan.Actualized need for further improvement of legislation defining the legal regime of personal immunity in criminal proceedings.An analysis of the legal guarantee of the principle of inviolability of the person during the arrest of the suspect.
Keywords: the principle of inviolability of the person, criminal procedure, guarantee the detention of the suspect, coercive measures.
Acute problem of restrictions on the freedom of the individual becomes in an environment where it becomes a party to the criminal proceedings and is covered by there strictions, statutory rules of procedural coercion. It is in this area a person acquires a specific criminal -procedural status and matching the most “severe” penal system of state coercion. To the recognition of the accused guilty of a crime latter subject to measures of criminal-procedural coercion by which the amount of his personal liberty severely curtailed.
Right direction restrictive en force ment in criminal proceedings follows from the general axioms of state coercion, which is regarded as a physical or mental effects by causing personal, material and moral constraints in order of submission requirements of the state. It is easy to note that in this definition as the main goal of coercion were exclusively the public interest. It seems that this definition not fully expresses the essence of coercion, because the shadow is his right regulatory nature. We agree with the Kazakhstan scientists Ahpanov AN, believes that “state coercion follow regarded as one of the methods of regulation of social relations. Such an understanding of the essence of coercion allows to allocate it the most characteristic and basic quality, combines both the target and the instrumental purpose of coercive measures”. Under the earmarking author understands “the set of problems that can be solved with the help of state coercion. Instrumental purpose determines the choice of coercion and manipulation of specific means and method sav ailable to achieve objectives” [1, 34].
Fora full definition of the status of the person, “sufficiency” of the freedom it referred to the Constitution and other international instruments are needed ”certain limits”
for that individual freedom is inviolable, even in circumstances where it is involved in criminal proceeding sand is under going compulsory restrictions. These “limits” outlines legal, and above all, constitutional guarantees of the rights and freedoms of the individual. The rules of criminal-procedural law guarantees are specified in relation to the specifics of the criminal process and procedural measures of coercion.
For example, the Constitution of the Republic of Kazakhstan inviolability of the person protected by legal guarantees in the application of arrest and detention.
The most concise content of these opposing principles (coercion, freedom of the individual, guarantees the rights and freedoms) we find the normal of the Constitution. In Part 1 of Art.16 established thate very one has the right to personal liberty [2]. In the content of personal freedom legislator puts “inalienable and absolute right a rising by virtue of the nature of then atural man”. Personal freedom is “the highest social values and principles, which serves as a criterion of human progress” link of the rights and freedoms of the individual [3, 15]. Constitutional guarantees the inviolability of personal freedomin the application of measures of state coercion used in criminal proceedings in the Republic of Kazakhstan, in accordance with Art. 16 are:
- The sanction of the court (on house arrest and detention);
- The right to appeal (court approval);
- The period of detentionis 72 hours (without a court order);
- The right to counsel (from the moment of detention, arrest or indictment) [2].
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Section 12. Criminal law and criminology
To date, protection of the individual in criminal proceedings, the inviolability of its constitutional and procedural freedoms is an issue of national importance, built in compliance with the rank of constitutional legality in the Republic of Kazakhstan. Based on the general social, moral, psychological and trends etc, we can also talk about the restriction of freedoms of those entities-parties to the proceedings, which, in accordance with the rules of criminal-procedural law enforcement measures are not applied. For example, the person performing the pre-trial investigation, attracting pursuant to Art. 197 Code of Criminal Procedure to participate in investigative actions provided for by the law of persons obliged to explain their rights and responsibilities, as well as the order of investigative actions [4]. Here citizens fall in to bodies with public authority and in case of default of its procedural obligations investigator, are “victims” official arbitrariness. In this case, we mentioned the rights of suspects, defendants, which correspond numerous duties of investigation and inquiry, the scope and content of which determines the warranty rights and freedoms of these persons. For example, in accordance with Part 3 of Art. 14 Code of Criminal Procedure every detainee be immediately communicated to the grounds for detention, as well as the legal qualification of the offense of which he is suspected or accused. The basis of this warranty contains the norm p. 3 art. 18 of the Constitution of the Republic of Kazakhstan, which establishes that the state bodies, public associations, official sand the media must provide every citizen the opportunity to get acquainted with concerning his rights and interests of the documents, decisions and other sources of information.
Thus, we are talking about legal guarantees, which are implemented by rules of law, based on the principles which are, in turn, the core of the whole industry legislation of the Republic ofKazakhstan. There fore, actualizing the issue of the rights and freedoms of the individual in criminal proceedings the legislator has built a strict system of basic provisions characterized by a certain warranty and compliance. These provisions are determined by the governing and democratic, humane, the corresponding socio-economic conditions of development of society; the construction of the criminal process. It is, of course, the principles of the criminal process, including the principle of inviolability of the person took a firm stand.
The basis of the principle of the inviolability of a remedial order of restriction of freedom in the criminal process, which is carried out through the use of measures of criminal-procedural coercion: detention, detention; forensic and judicial-psychiatric examination at the forced placement not being held in custody in a medical institution; compensation for damage caused to citizens as a result of illegal deprivation of liberty, detention in conditions dangerous to life and health, ill-treatment.
Under the right of inviolability of the person, according to
I. N. Shortto be understood “state-guaranteed personal security and freedom of the citizen, as well as any man in general,
consists in preventing, combating and blameworthiness attacks on life, health, bodily integrity and sexual freedom (the physical integrity of the person); honor, dignity, moral freedom (moral integrity); psyche (mental integrity); individual freedom of man, namely, providing him the opportunity to have any in its sole discretion to determine the place of residence (personal safety)” [5, 10].
Inviolability as the legal line-up of individual human rights and freedoms, and the protection of their warranty in the state. In relation to criminal proceedings security of the person has inherent refraction, but is not limited to ensuring the rights that are enshrined in Art. 14 Code of Criminal Procedure. Thus, in particular, Art. 15 is general in nature and absorbs Art.14, since calls the subject of legal protection of the rights and freedoms of citizens involved in criminal proceedings (and includes the right to security of person). However, Art. 14 does not even include a reference to Art. 16, 17,18, Code of Criminal Procedure, despite the fact that the meaning of these articles is the principle of inviolability of the person.
In this case, on the face of the costs of legislative technique: as a result of the fact that the same problem legislator decides to become law actually absorbing each other’s rules on compensation for damage, as well as on the safety of participants in the process, for example, repeated almost word for word.
The principle of inviolability of the individual is the basic construction of the beginning of the criminal process; This means that a person who was in the sphere of criminal proceedings is initially endowed with criminal-procedural rules guarantees immunity.
Analyzing the criminal procedure relations Kokorev L. D. and Lukashevich V D. rightly pointed out that “in criminal proceedings some subjective rights of the individual - is a guarantee of other subjective rights” For example, the right to appeal against actions of the investigator head of the body of inquiry, in fact, acts as a guarantee of the right of a suspect accused of inviolability [6, 67].
These authors refer to the procedural safeguards and principles of criminal justice. In this issue we consider it necessary to understand because principles and guarantees have completely different meanings. Principles and guarantees - it’s really different legal categories. Guarantees-it means security; and principles-fundamental, guiding legal basis. However, in some cases, actually principles act as guarantor. So, for example, the principle of the rule of law acts as a guarantor of the implementation and enforcement of the rights and legitimate interests of citizens.
Enum erating guarantee the principles of criminal procedure by different authors are different lists. Petruhin I. L. identifies three aspects:
1. control of the court of the legality of detentions and arrests.
2. Institute of admissibility of evidence as a way to protect the rights of the individual.
3. limits restrictions on fundamental rights and freedoms of individuals [7, 60].
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Realization of the right to personal integrity in the application of coercive procedural measures
A. N. Ahpanov system guarantees the rights and lawful interests of individuals in the field of procedural coercion refers to as the totality of the following elements:
a) regulatory settlement principles and the general conditions of application of criminal-procedural compulsion (procedural rules protecting the rights and freedoms of interested persons in the case of their arbitrary restrictions); rights and responsibilities of participants in the process (or their procedural status) in the area of enforcement: fixed in the rules of criminal procedure law procedure (procedure) the application of certain procedural enforcement;
b) the reasons for decisions on the application of coercive procedural measures, which manifests it self in the requirement of objectification - in terms of procedural decisions of the arguments and considerations, by virtue of which evidence is imparted such a value, is recognized to be applied the law;
c) the right to judicial protection of their rights and freedoms and to receive qualified legal assistance; right of appeal, including the court of the measures of procedural coercion decisions and actions of persons conducting the criminal proceedings in an accessible, not too complicated and operational form; the duty of the prosecuting authorities and the courts to clarify the rights of participants in the process and provide real conditions for their implementation;
d) the system of departmental procedural control, prosecutorial and judicial oversight of the preliminary inquiry and further investigation on the use of criminal procedure compulsion;
e) measures of responsibility of officials and leading criminal prosecution for illegal and unwarranted use of procedural coercive measures, base less and a violation of the restriction at the rights and freedoms of citizens
(criminal-legal norms of the Criminal Code, providing for sanctions for unlawful detention, arrest and etc.; civil-legal, disciplinary - on the basis of representations of disciplinary proceedings prosecutor, private court orders, criminal - procedural-return for further investigation of criminal cases, cancellation or modification of illegal and unreasonable decisions related to the measures ofprocedural coercion and et al.) [1, 15].
Given the specificity of institutions of criminal proceedings, these guarantees can be modified, supplemented, etc. For example, in the manufacture of arrest and detention as an additional safeguard duty of inquiry serves to notify the family of relatives detained, arrested.
Criminal-Procedure Code literally “stuffed” guarantees the inviolability of which the ordinary citizen is not aware. Especially this problem is acute because of the fact that the accused, the suspect limited freedoms and actions that he might send to his own defense. In our opinion, this is an important statement of the issues around legal education and professional competence of investigation and inquiry, which in turn implies a special training of professionals.
Thus, determining the safeguards systemas an essential link Kazakhstan’s criminal trial and their role in the realization of the rights and legitimate interests of citizens involvedin criminal procedure, we can say that the legal guarantees - this isthe most important legal instrument for the implementation of the rules and principles of law. Fundamental guarantees established in the Constitution of the Republic of Kazakhstan. The absence of such legislation gives legal guarantees a declarative nature, the implementation of which has a very dire consequences. Turns of legal reforms have also shown that the practice of lawenforcement and formal rules should closely interact and relate. The rule of law only has a complete and logical view of the faithful when it is supported by a guarantee of implementation - the root cause of her life.
References:
1. Ahpanov A. N. Problems of criminal procedure compulsion in the preliminary investigation stage. - Almaty: Zheti-Zhargy, 1997. - 176 p.
2. The Constitution of the Republic of Kazakhstan (adopted at the national referendum on 30 August 1995) (as amended on 21.05.2007).
3. The Constitution of the Republic of Kazakhstan: Scientific - legal commentary. - Almaty: Zheti Zhargy, 1998. - 429 p.
4. Criminal Procedure Code of the Republic of Kazakhstan datedJuly 4, 2014. - № 231//“Kazakhstan truth” from 10.07.2014 -№ 133 (27754).
5. Short I. N. Procedural safeguards the integrity of the person of the suspect, accused during the preliminary investigation. -
M., Institute of the USSR., 1981 - 96.
6. Kokorev L. D., Lukashevich V Z. Procedural safeguards the rights and legitimate interests of the individual in criminal proceedings//Vestnik Leningrad Univ. Ser. Economics, philosophy, and law. - Vol. 2. - 1977. - № 11.
7. Petruhin I. L. Judicial guarantees of individual rights. Topical issues of the fight against crime in Russia and abroad. -M., 1992, - 94, - vyp. 8.
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