Law/8. Constitutional law

Abdrakhmanov Serkhan, Ll.D., professor Ibrayeva A.S.

Al-Farabi Kazakh national University, Kazakhstan

Prosecution authorities in government system: experience of foreign countries and the republic of Kazakhstan.

The study of various legal sources and legislation of foreign countries leads to the conclusion that public prosecution authorities do not play the same legal niche in different countries. For example, the Prosecutor’s Office in France, Poland, Japan and belongs to the Ministry of Justice. In Spain and Italy, prosecutors are included in the judicial system (magistracy) and operate at the courts. In the UK, the Prosecutor’s Office is absent. In China, the DPRK and some CIS countries, including Kazakhstan and Kyrgyzstan, the Prosecutor’s Office is located in a separate system and is accountable to Parliament or the President.

Within the CIS, in one case - the Prosecutor’s Office has a definite place in the judicial system (for example, in Azerbaijan, Georgia, Latvia, Lithuania), and in the other case (eg., Russia) - the Prosecutor’s Office is given an independent position similar to that which it used to have in the state-legal system of the former Soviet Union. Competences and specific tasks, priorities in activities of the of the Prosecutor’s Office are also determined differently [1, p. 33].

Let us refer to the data of legal science in Russia. There are different opinions on the place of the Prosecutor’s Office in the Russian legal science.

First: the Prosecutor’s Office is set in the legislative system and on its behalf the supervision of enforcement of laws at all levels is undertaken [2].

Second: Prosecutors’ office is included in the judiciary system as the prosecuting authority [3].

Third: Prosecutors’ office is limited only by executive function within the Ministry of Justice [4].

Fourth: concept of two Prosecutor’s Offices. Its author, a professor of the University of Kiev, Mikheyenko M.M., proposes to create two prosecutors subsystem. General supervisory subsystem – by the Parliament, which will carry out the control functions of the legislature, and the judicial Prosecutor’s Office, headed by the Minister of Justice. This Prosecutor’s Office should initiate legal prosecution, prosecute in court, supervise inquiry and preliminary investigation bodies for compliance with laws, as well as bodies, executing sentences and other court decisions [5].

There are also different points of view regarding the powers of the Prosecutor’s Office. Thus, there is a belief that the public prosecutor's supervision should be kept to a minimum. At the same time the arguments about the "meager" efficiency of supervision over laws enforcement in this regard are stated. By such minimization, it is supposed to free prosecutorial resources to address the main challenges the prosecution - the fight against crime [6, с. 22].

Also, for many years the social understanding of prosecutor is primarily identified with the public prosecutor, not the authority supervising legality of acts and actions. In this connection, there is proposal to deprive the Prosecutor’s Office of supervision functions and eliminate the Prosecutor’s Office from the list of law enforcement agencies. The Prosecutor’s Office – is a rudiment of the Soviet authoritarian system, which should be destroyed in the course of ongoing historical transformation. It is the Prosecutor’s Office primary bears the charge for the mass repression, it used to be "the arbitrariness tool of the authorities," the body of authoritarian rule which has "no place" in a democratic legal state. That is why the system of powers separation has no place for a multi-purpose public prosecutor's supervision [7, с. 33].

In our opinion, these proposals are unacceptable, furthermore, they represent a danger to the state since are aimed at the destruction of well-established mechanism for protecting human rights and freedoms. In the face of increased crime situation the role and importance of activities the Prosecutor’s Office to fight crime, criminal prosecution implemented in strict accordance with the law of increases.

Let us indicate opposing views also. Thus, Russian scientists believe that in Russia there are currently no objective prerequisites for creation of the country's exclusive investigation authority - investigative committee or other structure, carrying out a preliminary investigation in all categories of cases. Existing bodies of inquiry and available system of law enforcement investigative units should be maintained and strengthened [7].

Most Russian lawyers believe that prosecution authorities shall maintain investigation functions. At this, the main development line of the Prosecutor’s Office should be its gradual focusing on investigation of particularly important cases. Initially, it is advisable to limit the jurisdiction of the authority to military crimes cases, corruption and malfeasance in government agencies, local government and law enforcement and certain other cases that are of greater public importance. At the same time, it is possible to extend the practice of, at the Prosecutor’s discretion, designating to investigator any difficult cases in order to ensure a high quality, objectivity and completeness of investigation. In the future, gradual transition from article-fixed jurisdiction to Prosecutor selected jurisdiction is possible, and accordingly, to investigation by the Prosecutor’s Office of a particularly important cases irrespective of the legal classification of the offense [6].

We will refer to the experience of the Republic of Kazakhstan. Kazakhstan’ Constitution left open the issue on location of the Prosecutor’s Office in the system of government. Let us state your own opinion on the matter. The issue of the place of the Prosecutor’s Office in the system of state and legal institutions derives from the general concept of the Kazakhstan statehood mechanism, envisaged in the 1995 Constitution and underlying the principles of powers separation. The separation of powers in the state mechanism of Kazakhstan does not mean understanding of the Prosecutor’s Office as an independent branch of government along with legislative, executive and judicial. Nevertheless, we should not think that the principle of separation of powers leaves no room for an independent supervisory role of the prosecutor's system, and to draw a conclusion about the need to dissolve the Prosecutor’s Office in the judiciary system or in the structure of the executive branch, in particular, transmission to the Ministry of Justice system.

In modern conditions the Prosecutor’s Office performs the functions of one of the elements of "checks and balances" system. It sets up and undertakes measures to eliminate any violations of the law, no matter where they come from. However, Prosecutor’s Office contributes with all its activities to interaction of separation of powers, their coordinated collective functioning as a single state authority. All of them are interested in maintaining and strengthening the rule of law which is the purpose of the Prosecutor’s Office. Without the rule of law no strong authority successfully performing its function, no state seeking to become legal could exist. The increasing role of the Prosecutor’s Office in development of a democratic legal state in Kazakhstan is determined by the fact that it is a necessary and reliable operating elements of the developing system for separation and interaction of powers. All the Prosecutor’s Office functions should be specifically targeted at it[8, с. 201].

We would like to mention opinions of Kazakh scientists, practitioners. The international scientific-practical conference was held in Almaty in 2002 on "Place and role of Prosecutor’s Office in the system of state bodies of the Republic of Kazakhstan and its role in protection of human and civil rights," which addressed different approaches to the role and place of the Prosecutor’s Office in the state-legal mechanism.

According to Deputy General Prosecutor of Kazakhstan M. Vaisov, being accountable only to the President and exercising supreme supervision over the accurate and uniform application of laws, presidential decrees and other legal acts, the Prosecutor’s Office is one of the elements of "checks and balances" mechanism that ensures separation of powers and balance between them. The Prosecutor’s Office is a legal tool of head of the state that guarantees inviolability of the Constitution, the rights and freedoms of man and citizen. By exercising its power in strict compliance with the Constitution and laws of the republic, the Prosecutor’s Office provides control of head of the state over activities of all government branches by legal methods [9, с. 36].

According to D.I. Baitukbaev, Prosecutor’s Office of independent Kazakhstan inherited not only traditional functions of supervision over the strict and uniform application of the law but also new ones. Traditional function is constitutional supervision; supervision over legality in socio-economic sphere; supervision over legality of investigation, inquiry and investigation activities; supervision over the legitimacy of judicial acts and enforcement proceedings. As new functions D.I. Baytukbaev identifies such functions as efforts to strengthen the presidential government, the activity in of international cooperation (this function could rise only in a sovereign state) as well as activities of the Prosecutor’s Office on crime prevention and supervision over legal statistics and information [10, с. 344].

In our opinion, the main function of the Prosecutor’s Office should be supervision over legitimacy of acts and actions of all officials, legitimacy of criminal investigation activities, inquiry and investigation, administrative and and enforcement proceedings. While crime prevention is carried out by all law enforcement agencies, in particular, the internal affairs bodies. It is prosecuting authorities satisfy the applications of citizens on rights violations by supervision of implementation of laws and legitimacy of legal acts, investigation and inquiry.

Supervision over compliance with laws as an integral function of the Prosecutor’s Office is a guarantee of preserving a unified legal space, integrity of the state, insurance of legitimacy and order, timely, legitimate and grounded elimination of violations of law, protection of the state apparatus from corruption, eradication of violations of law in law enforcement.

Since the Prosecutor’s Office is the main supervisory body in the Republic of Kazakhstan, currently it does not have investigative functions. However, the current data of jurisprudence indicate the need to give back the investigative functions to the Prosecutor’s Office. The reasons we see in the following points. It is the workload of investigative bodies of the MIA of the RK and other law enforcement agencies, expansion of corruption, low qualification of the investigating authorities, high turnover of staff, and other negative phenomena.

In our opinion, the Prosecutor’s Office should be given back the investigation functions on the most important and dangerous criminal offenses, as well as in cases of law enforcement officials. At the same time, we note that the Prosecutor’s Office should not be non-judicial body; all conflicts with the law should be resolved only through the courts. Thus, respect for the law would be fostered in citizens. That is the position today that is enshrined in the Russian Federation. Thus, in accordance with the Federal Law "On the Prosecutor’s Office of the Russian Federation" and criminal procedure legislation the Prosecutor’s Office is entrusted with prosecution as one of the functions. For this purpose, the Prosecutor’s Office has its own investigative unit. The Law (Article 126 of the Criminal Procedure Code of the Russian Federation) refers to exclusive jurisdiction the Prosecutor’s Office the investigation of the most complex and dangerous crimes. The exclusive competence of the Prosecutor’s Office also includes investigation of crimes, regardless of qualification, committed by prosecutors and investigators of the Prosecutor’s Office (Article 42 of the Law "On Prosecutor’s Office").

Investigations by other investigative bodies of crimes falling within the exclusive competence of the Prosecutor’s Office is restricted. At the same time, the investigator of the Prosecutor’s Office is entitled to conduct preliminary investigation of any criminal proceedings. When investigators of the Prosecutor’s Office conduct their investigation of crimes the Prosecutor performs two functions: supervision of legality and guidance of relevant prosecution body, i.e., creation for an investigator of conditions necessary to carry out his task [7, с. 24].

The same opinion has a well-known Kazakh researcher, practitioner, former First Deputy Prosecutor General of Kazakhstan, now a member of the Constitutional Council of Kazakhstan I. Bakhtybayev. He believes that today it is necessary to revive the investigative function of the Prosecutor’s Office. "The old barriers in the form of Article 84 of the Constitution of the Republic of Kazakhstan are abolished. We believe that we need a gradual approach to revival of the investigative unit, to begin we need to study the real case category for crimes committed by law enforcement officials. In addition, for education of the relevant staff at least five years are needed, during this period they need to go through the practical work and gain some experience, skills” [11].

This proposal is supported by S. Ongarbaev at the scientific conference in 2002, "In the first place we should expand powers of the Prosecutor’s Office on organization of crime prosecution as the most effective tool for suppression of illegal actions. The first step in this direction was made in the form of granting the Prosecutor General of the Republic the right to form investigative teams and appoint the Prosecutor as head of this group. However, this measure in the current situation is clearly insufficient. Oblast prosecutors also should be lawfully given the same right so that they can promptly and effectively respond to serious violations of the law. In addition, excessive concentration in one body of all aspects of criminal prosecution is against the principles of inevitability of punishment and equality of all before the law. For example, criminal proceedings initiated by the Prosecutor’s Office against the police officers who illegally charged citizens for administrative responsibility, in spite of the evidence of these actions does not find any legal solution. We believe that the time has come to address the issue of returning to Prosecutor’s Office of functions for investigation conducting" [12, с. 56].

From our part we believe that in the context of widespread legal nihilism and the low level of legal culture of the population the role of Public Prosecutor's supervision should increase. In the absence of properly formed institutions of the constitutional state the Prosecutor’s Office is virtually uncontested authority that can really withstand the negative processes developing in the legal field.

In this capacity the Prosecutor’s Office needs not only sufficient authority, experience in rapid and effective response to violations of the law acquired over many years, but also the gratuitous nature of ongoing protection of citizens' rights. The main thing - none of the bodies of legislative, executive or judicial power cannot replace the Prosecutor’s Office in the area of supervision.

Today, the Prosecutor’s Office - the only body that is able to respond quickly and effectively use special powers to prevent violations of the rights and freedoms of groups, labor groups, repressed groups, the category of citizens who are under exceptional circumstances in need of special support from the state, as well as to seek eliminate violations of the law. In many regions of the country the Prosecutor’s Office is the first to take specific measures to protect the rights of thousands of citizens who suffered from the arbitrariness of local authorities, and thus widely uses judicial and extra-judicial procedures to eliminate law violations.

Thus, analysis of the constitutional provisions on the Kazakhstan government machinery gives great reason to conclude that activity of the Prosecutor’s Office is an essential and necessary element of the "checks" and "balances" system, a mechanism to facilitate the interaction of the separated branches of a single state power, an effective tool ensuring the functions of the President as head of the state. In modern conditions the role of the Prosecutor’s Office as a protective body of law should increase.

References

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2 Berkovich E.F. Prosecutorial supervision over laws enforcement. - M .: Expert Desk. - М, 1998. – p. 334.

3 Vitruk N.V. Legality: concept, protection and promotion: General Theory of Law. Lecture course. - Nizhny Novgorod, 1993. – p. 256

4 Kobersky Yu.P. To ensure a unified legal space // Bulletin of the Ministry of Justice of the Russian Federation. - №12. - 2000. – p. 45-49.

5 Baskov V.I. Prosecutorial supervision over laws enforcement at criminal cases proceedings in the courts. - M .: Legal Literature, 1986. – p. 345.

6. Bessarabov V. Prosecutor’s Office as an institution of state power in the Russian Federation // // Place and role of Prosecutor’s Office in the state bodies system of the Republic of Kazakhstan and its role in protection of human and civil rights: Collection of materials of the international scientific-practical conference. - Almaty 2002. – p. 22-29. 

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8 Togizbaev G. To a question on the place of the Prosecutor’s Office in the authority bodies system // Bulletin of KazNU. A legal series. – 2008. - №1. – p. 201-204.

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10 Baytukbaev D.I. Legal status and functions of Prosecutor’s Office in the state authorities system of the Republic of Kazakhstan: Abstract from thesis of  Cand.Sc. Law. - Almaty, 2002. 
11 Baktybaev I. Conceptual bases of the Prosecutor’s Office of the Republic of Kazakhstan on ensuring law enforcement: Monograph. - Almaty, 2008. – p. 888 
12 Ongarbaev S.  Role of Prosecutor’s Office in protection of human and citizen rights // Place and role of Prosecutor’s Office in the state bodies system of the Republic of Kazakhstan and its role in protection of human and civil rights: Collection of materials of the international scientific-practical conference. - Almaty, 2002. – p. 56-59.