Opción, Año 33, No. 85 (2018): 107-125
ISSN 1012-1587 / ISSNe: 2477-9385
Criminal pre-trial proceedings in
the Republic of
Kazakhstan : Trend of the institutional transformations
A. Akhpanov
L.N. Gumilyov Eurasian National University,
Astana, Kazakhstan
ahpanov_a@mail.ru
S. Sabitov
Kazakh Humanitarian Juridical Innovative University,
Semey, Kazakhstan seke_71_@inbox.ru
R. Shaykhadenov
L.N. Gumilyov Eurasian National University,
Astana, Kazakhstan
Renat-270586@mail.ru
Abstract
Crime Prevention is
one the basic
policies
in
social
control area. Although total experience in different policy
zones of social crimes management is providing, and several theorists in the field provide theories,
but
in the Republic of Kazakhstan , yet the lack of a comprehensive policy in
this
area is felt more than ever. In this paper, it has been tried
to examine
the weaknesses and ambiguities of this crime prevention investigation using the documentary and
library study method.
Keywords: the criminal proceedings,
pre-trial investigation, law-
enforcement practice,
private investigation, special
procedural methods, private detective.
Recibido: 10-01-2018 Aceptado: 09-03-2018
Procedimientos penales previos en la República de Kazajstán: Tendencia de las transformaciones institucionales
Resumen
La prevención del delito es una de las políticas básicas en el área de control social. Aunque la experiencia total en diferentes áreas administrativas
de
gestión social de delitos está proporcionando, y varios teóricos en el campo proporcionan
teorías. En la República de Kazajstán, sin embargo, la falta de una política integral en este ámbito se siente hoy
día
más que nunca. En este artículo se ha intentado examinar
las debilidades y ambigüedades de esta investigación de prevención del delito
utilizando el método de estudio documental y de la biblioteca.
Palabras clave: el proceso penal, la investigación
previa al juicio, la práctica policial, la investigación privada, los
métodos especiales
de
procedimiento.
1. INTRODUCTION
The application of the updated criminal procedural legislation of the Republic of Kazakhstan
testifies both to the positive solutions of
many topical issues of investigative and judicial practice, as well as to the non-systematic, fragmentary approach to a number of theoretical and
applied problems of the criminal proceedings. It is obviously necessary to pay attention to some key questions, connected with improvement
of
the simplified proceedings, transition to the new level of understanding of the
role
and problems of the pre-trial investigation, its construction on the
basis of successfully approved foreign experience. In addition, it is important to clarify the place of institute of private detective activity,
including in the criminal proceedings, where the introduction is blocked by the government of the country for a
long time.
As
investigative practice shows the institutes of the accelerated inquiry and preliminary investigation (art. 190 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC RK)), protocol proceedings on criminal offenses
(art. 55 of CPC RK) have not given the expected effect (Tu, 2014). The periods of pre-trial investigation in comparison
with the old cpc increased by 1,5 times, where the workload for the investigators and interrogators
is increased at 3-5 times. The majority of
cases on criminal offenses are closed, as the proceedings on them are complicated.
Every fifth criminal case comes back by the prosecutor for additional investigation. (The criminal legislation without tricks / speech of the minister of internal affairs rk at the parliamentary hearings on
November 18, 2016). The analysis of norms on article 190 and chapter 55
of
the CPC RK, which were carried
out by us, gives the grounds for a
conclusion that
novels
are not simplified,
so they complicate
the procedural form (order) of
pre-trial investigation
in comparison
with
earlier operating
institute
of the accelerated pre-trial proceedings (Hendley, et al., 1997). The difference between the usual and accelerated inquiry and the investigation is had only in investigation terms, at the
same time at the interrogator (investigator) is remained the same volume
of
work and the number of procedural documents.
In
this regard, it is
offered the concept of pre-trial investigation
on criminal cases in the
simplified procedure and proceedings as the writ.
The concept is based on the comprehensive analysis of the legislation, including foreign, law-enforcement practice and data of the
state legal statistics. It provides the introduction to the existing the cpc of the essentially new edition of chapter 55 “features of the pre-trial investigation in simplified procedure” with inclusion in it of the separate norms for the article 190 “the accelerated pre-trial investigation” and also
addition to the cpc with new chapter 55-1 “proceedings as the writ”. At
the
same time, it is offered in the cpc to keep such forms of investigation
as the inquest and investigation with statement for the correction of art.
190 of the cpc (Tu, 2014).
We can say, that for the first time the
scientifically and practical reasonable criteria of crime evidence are
introduced, which are based on the obvious bases of criminal procedure
detention (experience of France, Germany and other European states).
Figure 1.
Scheme of the pre-trial investigation
The basis of differentiation of investigation forms are signs of criminal offense according to which it is recognized as obvious (Bruton, et
al.,
2003):
- The person was caught at the moment of committing a crime;
- The person is detained by the victim, eyewitnesses
and other persons directly after his commission of crime;
- The person was caught near the place of crime commission
with an encroachment subject, and/or the crime instrument;
- The victims and eyewitnesses directly point to this person;
- The crime and person, who committed
it, are imprinted with
technical means of fixing;
- The obvious vestiges of a crime, indicating the commission of obvious crime by him, are found on the suspect or his clothes, at
him or in his dwelling.
If there is at least one of the specified signs
of evidence of offense, the investigator/interrogator at his own discretion makes the decision on
investigation:
1) Obvious criminal offenses as proceedings in the form of the
writ;
2) Non-obvious
criminal offenses and also obvious crimes, except
for the gravest
crime in the course of a simplified pre-trial
investigation.
At the same time the consent of the suspect and victim is not
required, there is enough the discretion of the person, conducting pre-trial investigation. Also, it is remained the right to transfer to the
inquiry regime or preliminary investigation for the person, conducting the pre-trial
investigation.
2.
RESULTS
An article considers the key questions, connected with
improvement of the simplified proceedings, transition to the new level of understanding of the role and problems of the pre-trial investigation, its construction on the basis of successfully approved foreign experience (Kashima, et al., 2009). It is important
to clarify the place of institute of private detective activity in the criminal proceedings, where the introduction is blocked by the government of the country. The need of thorough and complex study of the legislation
and law-enforcement practice in the sphere of penal justice of the countries of continental law
system for the purpose of creation of the model on domestic pre-trial investigation and judicial proceedings, meeting the high standard of the constitutional state, prescribed by the constitution
of
the republic in the
developing of a new direction of investigation of criminal offenses will
allow to pay closer attention to the legislative procedures and practice for investigation of criminal offenses.
2.
1. Pre-trial investigation in the simplified procedure
Pre-trial investigation in the simplified procedure can be applied by
the
interrogators and investigators on obvious crimes of small, average
and
grievous gravity of offence and also non-obvious criminal offenses
in the presence of the following conditions:
- If the person who committed the criminal offense is precisely identified;
- The person agrees with the suspicion put forward against him;
- It does not challenge the proofs exposing it;
- According to the nature and size of the claimed civil claim.
By analogy with the accelerated pre-trial investigation (which is offered
to abolish)
the concept is
kept the cases when
pre-trial
investigation
in the simplified procedure is inadmissible. Pre-trial investigation in the simplified procedure, according to the concept, is as
follows. Till seven days after registration
of the statement and message
about criminal offense in the single register of pre-trial investigations by
the
interrogator (investigator)
there have to be made only those urgent
investigative actions which are directed to exposure of the suspect, where delay with them can lead to loss of proofs and actual data. During pre-trial
investigation in the simplified procedure the investigation of the circumstances of case is limited by volume of proofs, sufficient for establishment
of
the fact on the criminal offense or crime and the person
who was made it (Sultanov,
2016).
At
the same time it is offered to establish the ban on proceedings of the investigative actions, demanding a
long time: made according to the sanction, confidential,
directed to check and specification of evidences.
Criminal procedure
detention is applicable in accordance with general practice, but with restriction in this case of the
term
of pre-trial investigation in the simplified procedure.
During these proceedings, it is allowed an application
of
measures of restraint:
recognizance not to leave or personal guarantee, and also other measures of procedural coercion: the obligation
about court appearance and seizure
of
property. On obvious grievous crimes the person, conducting the pre-
trial investigation, has the right to apply
a measure of restraint detention,
according to the article 139 CPC RK, for a period - up to 10 days. Upon
completion of this type of
special proceedings by the investigator or interrogator there is formed the final procedural document - the protocol on pre-trial investigation in the simplified procedure, containing the description of act, its qualification, the list of proofs, personal details
about the person who committed criminal offense. This protocol
summarizes
a number of the procedural acts which were done at usual investigation for criminal case. Its content does not need the
pronouncement of separate procedural acts: resolutions on qualification of
act of
the suspect, protocol of
acquaintance of
the parties with case materials, indictment, and the prosecutor’s decision on bringing the
accused to trial. Pre-trial investigation in the simplified procedure will be
applied by law-enforcement bodies generally. Criminal cases by this type of proceedings have to be considered by the first instance court in the
reduced order according to the rules of article 382 CPC RK “judicial
proceedings in the simplified procedure” (HENDLEY, et al., 1997).
RK)
2. 2. “Proceedings in the form of writ” (chapter 55-1 of CPC
This type of special proceedings can be applied at the discretion of the person, conducting investigation on obvious criminal offenses, which
punishment for commission does not provide arrest. Proof limits in pre- trial preparation
in the form of the writ are limited to the proofs,
establishing evidence of criminal offense and commission it by suspect.
Along with interrogation of the suspect by the investigator, interrogator it
is formed the protocol on explanation to him the rights to be present at court session, and in case of his absence - the right to bring objections on a sentence, the resolution in the form of the writ. The appropriate behavior of the suspect is provided with the same measures, as at pre-trial investigation in the simplified procedure, except for detention. Within two days from the date of registration
in the single register of pre-trial investigations of the statement or message, the person conducting pre-trial
investigation
makes the protocol on obvious criminal offense and directs the case to the prosecutor. The court, according to the prosecutor petition,
can
consider the merits of the case in the form of writ on the basis of the
criminal case file with - or without participation
of the parties, but with
obligatory
prosecutor’s participation as the state accuser. After obtaining
the
copy of the sentence, the resolution on dismissal of the case in the
form of the writ, the convict, justified and their defenders, the victim and his representative has the right to bring the objections within seven days.
The act in the form of the writ is recognized
as invalid in the presence of objections, this case is subject to new consideration in other structure of
the
court according
to the rules of article 382 CPC RK. At their absence,
the
sentence, resolution
on dismissal of the case in the form of the writ comes into legal force and can be appealed, protested in accordance with general practice, the expected effect.
Implementation of the concept in the draft law will allow: to provide procedural economy; to
considerably
reduce time between the
moment
of the commission of
act and the
resolution
of the case on the merits, to reduce the costs of pre-trial and
judicial proceedings for crimes of the small, average and grievous gravity of offence, committed
in the conditions
of evidence, and also for non- obvious and obvious criminal offenses; to simplify a subject and limits of
proof with its transferring to the main judicial proceedings;
to concentrate efforts of criminal prosecution authorities on investigation
of
the non-
obvious and the gravest crimes; to raise a role of court in the criminal legal proceedings;
to bring the criminal procedure in
line with
international standards and the
best
world practices of the simplified investigation and also to allocate the elements of man dative proceedings on criminal cases (Germany experience).
The current state of domestic criminal proceedings inevitably put question about its historical model
and
a vector of further development. It is appropriate
to emphasize that the
Kazakhstan criminal legal
proceedings
as national
branch of the continental
law
system is a successor of the soviet, Russian, German and
French criminal procedure doctrines.
2.3. Further improvement of the organization for the pre-trial
investigation
According to
the Republic of Kazakhstan Criminal Procedure Law, distributed on February 26, 2013, due process of criminal law has three stages: (a) a preliminary investigation in the prosecutor’s office
(under the state attorney), which may end in issuing an indictment; (b)
proceedings
previously the court of first instance primary court, which issues a governing
in either sentencing
or
discharge; and (c) proceedings
before the court of appeal.
Including at the present time the investigation and inquiry, has to consist in transition only to one form of preliminary
investigation - in inquiry (police inquiry). In general the investigator and interrogator perform the single function, have the identical procedural status and equal
volume of competences. The procedural figure of the interrogator
differs from the investigator in separate secondary signs: the subject sub-
investigation
of
criminal cases, investigation periods, coordination of all procedural decisions, by the last one, with the chief of body of inquiry and
formal procedural independence of the interrogator. His “independence” is inherited owing to “the institutional deformations” (Golovko, 2011) by interrogators of the soviet prosecutor's office in the beginning, and since april 6, 1963 – interrogators of law-enforcement
bodies from the court interrogator, who
was
really independent and
which legal
status
was
regulated by the charter of criminal legal proceedings of the Russian
empire of 1864.
Certainly, the return to archaic institute of the interrogator
is irrational. Then abolition of such participant of criminal proceedings as
interrogator is logical, like, for example, it took
place in Germany in 1974 (Nik-zainal, et al., 2012). His status has to be transformed into the
investigator. Thus, the process of proof needs to be distributed according
to the
functions and
competence of the
bodies authorized on
that, according to the theory of criminal procedure functions. The
realization of the principles of a presumption of innocence, competitiveness and
participant equality in pre-trial proceedings demands conceptual
reconsideration
of canons of the Kazakh successors of the soviet proof theory. On the basis of stated it is expediently to refuse from the concept of criminal prosecution
(charge) at a stage of pre-trial investigation, in
favor of the concept, according
to which the stage of pre-trial investigation should not state officially validity of act, its commission by the person and his guilt. The actual data collected by the investigator (interrogator)
should not be recognized by them as case proofs. Judicial
practice
shows that the court is not only limited with to the collected
evidence,
but also it is not inclined to reconsider
their status. The court
coherence with “preliminary” validity of the facts of case is confirmed
convincingly by the public statement of the Kazakh judge that the miserable amount of verdicts of not guilty is caused by the fact that “all illegal charges have been already checked for stages of pre-trial
investigation
and
they took the appropriate
assessment”. (Lawyers
announce about decrease in legality
standards at investigation and judicial
proceedings
/, 2016). According to the letter of the law, the interrogator must follow the requirements of the article 24 CPC RK about a
comprehensive,
complete and objective investigation of the case facts,
collecting both accusatory and exculpatory evidences. But, the rules are not always followed as the norm on the ban of performance of different criminal procedure
functions by the same participant of process is applied theoretically and practically. In this regard, the interrogator is focused objectively on search of accusatory
evidences, giving to the defense the carte blanche on identification of the justificatory or to the detection of
mitigating evidences. It
is
known
that the existing
CPC
RK.
In comparison with the previous code expanded considerably the competences and possibilities of the lawyer on implementation of
protection function of the suspect, accused, defendant and function of the
representation
of interests for the victim in pre-trial proceedings. At the
same time, the introduced innovations essentially did not change the place
and
a role of the lawyer as
the main form of participation in the process of
proof for subjects
of the defense is still the statement
of petitions, and recognition (or non-recognition)
of the object or information provided by
the
lawyer as the source of evidence remains the exclusive prerogative
of the body pre-trial investigation,
prosecutor and court. There is remain the old, already
“preserved”, scheme of legal relationship of the lawyer and
criminal prosecution authorities and court, pretentiousness
of
equality of the parties in criminal proceedings.
The existing actual procedural
inequality
of the lawyer and interrogator (investigator) in the course of proof at a stage of pre-trial investigation, in our opinion, does not allow to realize fully the principle of competitiveness by consideration of criminal case on the merits in court,
turning it into a declarative requirement. Besides, it is still observed
in modern investigative practice obvious superiority
of
the prosecuting
party over the defense. The actual
data
collected by the person conducting
investigation, or submitted to him by the suspect, his defender, get the status of proofs only after giving them a procedural form of the relevant
source exceptionally by the interrogator (investigator). The investigator
has
the sole
right to form the prosecution evidence system, to estimate and “to
filter” the
actual data,
submitted by the
prosecuting party
which contradict
or weaken the
version
of accusation.
Thus,
for
today
the
interrogator is
not
interested in a research and
collecting the
proofs, justifying the subject of a crime, he has no corresponding legal status for assessment of proofs. It should be noted that at a stage of pre-trial
investigation
the
accusatory bias is inevitable owing to performance possessing authority
of the criminal prosecution
authorities of the direct
function, and for a stage of judicial proceedings the body, conducting criminal proceedings, collects and presents evidence, formed taking into
account the requirement
of admissibility
which is a subject of the judicial analysis. In Russia it
is discussed the question about “de-formalization” of investigation according to the European standards of proof and rules of
criminal
prosecution. It is offered “gradually
… to reduce the
requirements for the formal side of evidence and raise the requirements
for their actual quality by courts” (relevancy, credibility
and reliability
of actual data about guilt of the person). It is remarkable that according to the
Germany cpc the evidences, given in prosecutor’s
office and police, have not the evidentiary, and focusing meaning ... At
pre-trial proceedings there
isn’t carried out the criminal procedure proof which is exclusive competence of court (Maslov, 1999).
3. CONCLUSION
Application of the supplies of the Concept of Legal Policy will
allow pushing into practice the main ideas and principles of the pre-trial proceedings in the context of new phase in development of rule of law in
Kazakhstan.
Criminal policy is the greatest important section of the legal policy of the government. Improvements
and
improvements in criminal
policy are presented through a complex, coherent correction of criminal,
criminal procedural and criminal executive legislation, as well as law
enforcement practice. It is necessary
in the Kazakhstan
criminal proceedings to assign for police inquiry the clarification of circumstances on commission of criminal offense and collecting of the confirming actual data
(detection, fixing and withdrawal), having excluded the right for their recognition as proofs by the persons conducting pre-trial investigation. At such model the prosecutor’s office, according to the article 83 of the
constitution rk, will inspect of legality of operational search activity, pre- trial proceedings
and
respect for the rights and freedoms of citizens at a stage of preliminary
investigation, to be as the prosecuting party in court. Besides, prosecutor’s office keeps the right, according to the procedure
and
within the limits prescribed by law, to carry
out criminal prosecution.
In
our opinion, a comprehensive
and
objective investigation of the actual data collected by the criminal prosecution
authorities and subjects which are carrying out protection against it, and also assessment of data (from
the point of view of
relevancy, admissibility, reliability, and
in
total sufficiency for
the solution of criminal case) have
to
be assigned to judicial
authorities
and to
be considered directly
in court. At
such
approach in pre-trial proceedings it will be reached the procedural equality of the criminal prosecution
authorities and persons performing protection function, that, undoubtedly, will positively affect realization of the
principle of competitiveness
and
providing of equal possibilities of
asserting of the procedural interests in court.
Along with it, legal opportunities
of the lawyer in criminal proceedings can be strengthened. It is expedient to strengthen guarantees of obligatory participation of the lawyer in proceedings of investigative and procedural actions concerning the third parties which are conducted
according
to his petition or the request of the person whose interests he represents. In addition of point 13) the second part of the article 70 CPC RK, the lawyer has to be beforehand
notified about time and the place of proceedings of such actions. Derogation from this rule has
to
attract
recognition invalid results of the specified actions. In this case it is applied
the
rule of point е) the third
part of article
14 of the international covenant on civil and political rights, saying that “everyone
has the right at
consideration of any criminal charge brought to him … for citation and
interrogation of his witnesses on the same conditions which exist for the
witnesses, acted against him” (International covenant on civil and political
rights (Adopted by the resolution 2200 a (xxi) of the United Nations
general assembly from December 16, 1966). Meanwhile
in the point 22
article 7 CPC RK, the concept and the
moment of the
beginning of
implementation
of criminal prosecution (charge) are associated with the beginning of pre-trial investigation and collecting of accusatory
proofs at
this stage. Whereas in a stage of pre-trial investigation there is no figure of the defendant and charge isn’t brought.
Wherein, according to the rules of committee of legal statistics and
special recording of the
prosecutor general’s office the person is considered brought to trial
if criminal case is dismissed
against him in pre- trial
proceedings on non-rehabilitating
bases. At the same time from a
position of presumption of innocence the official beginning of criminal prosecution (charge) concerning the particular person has to be considered the moment of the bringing of the defendant to court by the prosecutor and
the
direction of case to court with the indictment.
In this regard it is
possible to resort to analogy with § 151 Germany cpc which has
differentiated
the investigation and next initiation of criminal prosecution
before
court (the public
charge,
brought by
the prosecutor). In
Kazakhstan there is a social demand on the provided services of private
investigation from citizens and legal entities (the commercial
enterprises, banks, lawyers, etc.).
It is remarkable that signs of
private detective
activity were traced in common law of Kazakhs. In particular, the laws of “zhety zhargy”, except settlement of dispute, applications of punishment to the person who committed a crime, were established requirements for collecting data and detection of the stolen cattle, property, etc. Thereby we establish
the fact that
there were people
whose profession was
investigation
of
the stolen property for special remuneration,
at the same time they assigned to themselves powers of “the national pathfinder” or an
analog of private investigation.
Adoption of the relevant law will remove from “the shadow” this
type of service to the legitimate sector that will allow law enforcement
and
other public authorities to control legality
of private investigation. Besides, formation of the services market of private investigation does not require
the
big financial
funds from the state budget and it will open new jobs and will provide tax revenues. It is obvious that private investigation
will promote to the state law-enforcement activity and develop the competitive environment. Proceeding from performance by the private
detective of support function in criminal proceedings and its bit part, disinterest
in the case solution, we suggest including it in group of the other persons who are involved in criminal proceedings and promoting
collecting of proofs.
Provision of
services to participants of criminal proceedings will allow to for the private detective to use the procedural methods on collecting, researching and submission
of proofs. In particular, we offer the following: poll of citizens and officials (from their
consent); obtaining information from citizens and
officials from their
consent; the examination of objects according to the written consent of their owners; external survey of the buildings, constructions, rooms, territories, vehicles and other objects for obtaining necessary information;
measures for fixing of traces of an offense event. It is also important
to provide the special procedural methods,
used by the private detective during the provision of services to participants
of criminal proceedings.
It means use of technical means
(video and an audio recording, photographing and others) without violation of the rights and freedoms of
citizens, conducting
an
observation with use technical means (except for
special, used in operational
search activity). Besides,
the detective must
have
the right
to
detain
the person, obviously involved
in crime
for
prevention and suppression
of
illegal acts. The foregoing demonstrates
about the need of thorough and complex study of the legislation
and law- enforcement practice in the sphere of penal justice of the countries of
continental law system for the purpose of creation of the model on domestic pre-trial investigation and judicial proceedings, meeting the high standard of the constitutional state, prescribed by the constitution
of the
republic. Wherein, we incline to the opinion that it is expedient to pay
closer attention to the legislative
procedures and practice for investigation
of
criminal offenses, existing in Germany.
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