UDC (Universal decimal classification) 343.12

THEORETICAL AND LEGAL FUNDAMENTALS OF INVESTIGATOR’S ACTIVITY

UrazymbetovT.Ye., Rakhmetova M. A.

Zhetysu State University named after I.Zhansugurov,

Taldykorgan

In the conceptof legalpolicy of the Republic of Kazakhstanfor the period from 2010 to 2020, approved by the Decree of the President of the Republic of Kazakhstan of August 24th, 2009 it was noted that «the main aim of legal policy in the RK is furtherconsecutiverealizationof specific normsof basic principles of criminal proceedings directed to protection of rights and freedoms of a person» [1,48]. For protecting the specified values the government solves a great deal of problems one of which is struggle with crimes.

Struggle with crimes is realized by special state bodies. Significant role in it is played by investigatory bodies which function as a part of law-enforcement bodies, national safety bodies and financial police.

An important role in development of these aims is played by law enforcement bodies. For this purpose «Law-enforcement system has enough experience, necessary legal base, potential resources for effective and active struggle with crimes and corruption» [1,51]. These are bodies realizing pre-trial investigation which task is to solve crimes, prove guilty persons and institute criminal proceedings against them. The materials received during pre-trial investigation, sent to the court and created the base for the trial are its basis. «One of the major tasks of law enforcement bodies in the filed of struggle with crimes is institution, investigation and disposition of criminal cases.It requires from corresponding state bodies and the officials carrying out criminal prosecution perfect knowledge of procedural criminal legislation.Procedural criminal law is subject to exact and steady observance for all participants of criminal trial. Only under condition of strict compliance with this law successful execution of the tasks of criminal procedure is possible».

A detailed full objective preliminary investigation provides conditions for imposition of lawful, legitimate and correct sentence, and on the contrary, if an investigator does not use completely the available means and ways of collecting and investigating of proofs, it can complicate the trial, and sometimes result in imposition of a wrongful sentence [2,101].

At the same time there are so many problems of activity of preliminary investigation bodies, that the carried out researches do not exhaust all aspects of their solving. In this connection a research of procedural status of an investigator is done.

Work of an investigator is not limited by preparation of materials for the court. He plays the major role in accomplishing the tasks of criminal proceedings, in struggle with crimes, in prevention and suppression of crimes. It is an investigator and inquiry bodies who carry on direct struggle with crimes.

At the present stage of legal reform in Kazakhstan the questions of procedural independence and independence of an investigator have not found due reflexion in the legislation that requires a new approach to their solving. The status of an investigator is sometimes uncertain, for example besides investigation of criminal cases he performs some unusual functions, like maintenance of public order. Investigating bodies still function in the inquiry bodies system. Besides, there is a restriction of their competence from public prosecutors at making procedural decisions. But reforming of criminal-procedural legislation is in progressnow. As an example it is possible to mention corresponding alterations and additions to the effective criminal-procedural code of the RK which extended application of the results of operative-investigation activity at proving in cases of organised crimes and corruption. But on a par with it, in our legislation there are still some concepts and terms defining the order of pre-trial activity of criminal prosecution bodies in criminal proceeding of the RK which contain contradictions and flaws. (For example, it concerns identity of concepts "preliminary investigation" and «preliminary inquiry» by the domestic legislator).

In the theory of criminal trial the questions of optimisation of investigatory activity and increase of the procedural status of an investigator are researched from the middle of 19thcentury. Works of such authors as N.A.Abdikanov, I.Z.Bakhtybayeva, L.S.Bersugurova, B.K.Toleubekova, K.K.Khalikov and others’ are devoted to this problem.

An investigator is an official, authorised to carry out preliminary investigation on a criminal case within the limits of his competence (clause 1, article 64 of the CPC of the RK). His function is investigating criminal cases following the requirement of all-round, full and objective research of the circumstances of the case, revealing the circumstances both convicting and justifying the accused, as well as the circumstances mitigating and aggravating his responsibility [3, p.77].

Preliminary investigation bodies are investigators of law-enforcement bodies, national safety bodies and the Agency on struggle with economic and corruption crimes. They investigate cases about crimes included in their jurisdiction according to the law. All investigators at crime investigation have equal procedural rights and perform equal procedural duties irrespective of their departmental belonging. They realize criminal-procedural activity within the limits of a uniform order of institution of criminal cases and preliminary investigation. The competence of investigators of the stated preliminary investigation bodies in investigating specific criminal cases is unequal. It is defined by the provision of the law about obligation of preliminary investigation and investigative jurisdiction of criminal cases.

As an independent subject competent to institute a criminal case an investigator appears from the moment of institution of a criminal case and its acceptance as a process. Since this moment he has all procedural powers given him by criminal-procedural legislation [4, p.62].

An investigator at the preliminary investigation stage is procedurally independent. An investigator makes all decisions about the direction of investigation and processing of investigatory actions independently, except the cases when the law provides receiving a sanction of public prosecutor or court decision, and bears full responsibility for their lawful and timely execution (p.5 clause 64 CPC of RK). Written instructions of public prosecutor are obligatory as a rule. But if an investigator does not agree with the instructions of public prosecutor on some questions, the law provides a possibility for an investigator to hand over a case to a superior public prosecutor with a written description of his objections.

An investigator at criminal case investigation plays the role of criminal prosecution and he is authorized with corresponding powers by the law for its realization. It has to institute a criminal case within his competence in each case of detection of criminal signs, to take all measures provided by the law on establishing and catching the persons who committed a crime, and also revealing the reasons and the conditions resulted in committing a crime (p.2 clause64 CPC - an investigator has the right to institute a criminal case, to organize a preliminary investigation and to do all investigative actions provided by CPC of the RK).

An investigator has to take all measures in all-round, full and objective research of the circumstances of a case, to organize criminal prosecution of the person if there are sufficient proofs testifying committing the crime by him, by calling him to account as the accused, accusing him, selecting a restraint according to the CPC of the RK, making the bill of particulars.

Authorized with considerable powers, many of which can be realized compulsorily, affecting essentially the person, his rights and legal interests, an investigator has to work on the basis of strict lawfulness, respect of a person, humanity.

Procedural independence of an investigator is expressed in his right to give to corresponding bodies written instructions on making investigation and search operations and other actions on a concrete case which is in his process. At any moment he can take a file before expiration of inquiry time on which preliminary investigation is obligatory but which is instituted and investigated by inquiry body.Successful realizing by an investigator of function of criminal prosecution presupposes his procedural independence. The law in certain limits protects independence of an investigator (p.5 clause 64 of CPC - illegal intervention in investigator’s activity entails criminal liability). If according to general rule the instructions of public prosecutor and the chief of investigatory department are obligatory for an investigator and an appeal does not stop their execution, legal systems of investigator’s disagreement with the instructions on the questions on impleading a person as the accused, qualifications of a crime, volume of accusation, transmitting the accused to the court, dismissal of case, can stop their execution. If an investigator does not agree with them, he has the right to give the case to a superior public prosecutor with written description of his objections. In this case the superior public prosecutor either cancels the instructions of the inferior public prosecutor or charges the other investigator with investigation of this case. Transfer of case to other investigator at disagreement with the instructions of the public prosecutor which are recognized by the superior public prosecutor as correct, means that the investigator cannot be forced to act contrary to the case formed as a result of a legal investigation [5, p.59].

Decisions of an investigator on the cases being in his production, made according to his internal belief, made according to the law, have to be executed obligatory by all enterprises, establishments, organizations, officials and citizens.

An investigator as well as a judge, a public prosecutor, cannot participate in a legal investigation and is subject to recusation if there are reasons provided by clause90 of CPC of the RK. However former participation of the investigator in a legal investigation is not the reason for his recusation. If there are reasons for recusation an investigator has to keep from participation in the case. The decision on recusation of an investigator is made by public prosecutor (p.3 clause 92 of CPC of the RK).

Activity of an investigator is difficult creative work demanding serious special knowledge, experience, ability to reveal and use various proofs and the most important ability to work with people. An investigator plays an important role in the correct decision of the question about the form of responsibility of the person who committed a crime. It gives their activity a special political aspect and emphasizes an active role of an investigator in solving the problems of justice.

Investigator’s activity in juridical literature is activity regulated by the norms of criminal-procedural right and directed to solution of crime and establishment of all circumstances, connected with illegal act, with the purpose solving the question about presence of reasons for bringing the accused to trial or dismissal of a case. An investigator represents the state in his sphere and his duty is to protect interests of the state, the rights and freedoms of citizens. He must approach each case taking into account state interests, instead of narrow professionalism. He is expected to be fast and active in investigating and at the same time maximum unbiased in ascertainment of all circumstances convicting the accused and aggravating his responsibility, as well as justifying the accused and mitigating his responsibility [6, p.93].

Successful justice, practical realization of the principle of unavoidability of punishment for each committed crime in many respects depends on the quality of investigator’s work.

Investigator’s activity is performing the function of preliminary investigation assigned to him by the law. It is directed to achievement of tasks of criminal proceedings and is realized on the principles of democratism and humanism.

The law gives extensive authorities to an investigator and guarantees his procedural independence. At crime investigation he makes all decisions about direction of investigation and production of investigatory actions independently, except the cases provided by the law, and bears full responsibility for their lawful and timely realization.

The authorities of an investigator are stated in clause 64 of CPC of the RK where it is specified: «An investigator makes all decisions about the direction of investigation and processing of investigatory actions independently, except the cases when the law provides receiving a sanction of public prosecutor or court decision, and bears full responsibility for their lawful and timely execution. Illegal intervention in investigator’s activity entails criminal liability. If an investigator disagrees with the instructions of public prosecutor on the investigated case he has the right to appeal against them to superior public prosecutor.

In relation to the cases investigated by him an investigator has the right to get acquainted with operative-search materials of inquiry bodies concerning the investigated case, to give them written obligatory for execution commissions and instructions about production of investigatory actions».

Having extensive rights an investigator simultaneously also has certain duties. He has to make decisions corresponding to procedural provisions, specifying when, under what conditions and how he can apply them.

An investigator acts responsibly if his decisions are made on the basis of the conditions provided by the law and in the presence of sufficient proofs collected as a result of full, all-round and objective investigation of a crime. With another words legal actual bases are necessary for making procedural decisions.

Procedural responsibility of an investigator ensues when the decisions made by him contradict the purposes of an investigation and do not correspond to the requirements which the law provides in the investigatory situation. The reason for procedural responsibility is establishment by public prosecutor of the fact of inadequate execution of his duties by an investigator that entailed making an illegal or unreasonable decision by him, and also in a case when an investigator is mistaken in good faith, i.e. he believes that his decision is correct[7, p.103].

Guaranteeing procedural independence of an investigator and giving him freedom of choosing actions, the legislator at the same time provided the measures of influence directed to cancellation of the decision made by the investigator. The public prosecutor having seen infringement of the requirements of the law in the made decision, has to cancel or return the case to additional investigation or to discharge the investigator of conducting the case. The court on the same reasons can return the case to additional investigation, stop production or make verdict of not guilty.

Being one of the kinds of legal responsibility, procedural responsibility of an investigator is expressed in putting on him an additional duty to eliminate the infringement of the requirements of the law made by him or in his discharge from the further conducting investigation. At realization of powers an investigator starts legal relations with persons, state bodies and public organizations, and also with the chief of investigatory department, public prosecutor, inquiry body and the court.

Specificity of investigatory activity is determined by presence of special body (investigator) conducting preliminary investigation; peculiarity of the purposes of activity following from general purposes of criminal proceedings; character of investigator’s powers, maintenance of duties and rights of process participants; conditions of occurrence criminal-procedural relations; presence of special procedural mode, special procedural form in which this activity is conducted.

Studying of investigator’s activity requires first of all disclosing of its nature as a special social activity. For this purpose it is necessary to consider briefly the theoretical, legal, moral and psychological bases of investigatory activity and its principal directions.

The theoretical basis of investigator’s activity is revealed in social and legal aspects. Investigator’s activity is based by public requirement of protection of state interests, law order, freedom and rights of citizens.

Investigatory activity as it is known is realized on the basis and in the order, established by the law, i.e. on the legal basis formed under the influence of the norms of criminal-procedural right, it is directed to establishment of the objective truth by means of full, all-round and objective research of actual circumstances on each criminal case with the help of the collected proofs. In investigator’s activity scientific data about the laws of trace forming, methods and means of discovery, fixing and caption of proofs, the most effective tactical methodsof investigatory actions, and also recommendations about the technique of investigation of some kinds of crimes are applied. Preventive measures on preventing crimes are also of practical value.

Having the constant purpose (objective truth achievement), the uniform subject determining the main direction (investigation of crimes) criminal-procedural activity of an investigator is many-sided, as it is connected with investigation of different kinds of crimes. Simultaneously such activity in its concrete expression, i.e. with reference to investigation of a certain sociallydangerous act, is unequivocal, represents comprehensive whole and cannot be divided into single kinds.

The requirements presented to different kinds of activity, depend on the purposes of the subject to which it is directed. Any kind of activity must be studied as from its external display (mode, norm, rule, organization, objective structure), and from psychological side.

Investigatory activity is really expressed in the form of concrete action, system of actions. The maintenance of an action depends on the purpose, to which achievement it is directed. Change of purpose entails change of maintenance and character of action. Therefore, not changing its functional purpose, investigatory activity allows internal conversions by changing the directions of actions. So we can speak about kinds of actions which character depends directly on the purposes. An investigator conducting investigation on a certain criminal case carries out one kind of activity of crime investigation.

In conclusion it is necessary to mention conceptual directions of increasing efficiency of procedural status of an investigator:

1. For increasing procedural status of an investigator it is necessary to pass the Law of the RK «About preliminary investigation bodies and the status of investigators in the Republic of Kazakhstan.

2.The stage of preliminary investigation as one of the forms of preliminary investigation of criminal cases, being a component of movement of criminal case in criminal legal proceedings, has proved its practical necessity and efficiency.

3.For the purpose of maintenance procedural independence of an investigator, increasing the efficiency of competitiveness of the parties at the stage of investigating criminal cases it is necessary to release public prosecutor from procedural guidance for work of an investigator reserving him only for supervising duties.

We think that investigator’s activity is uniform and specific to problems, principles, maintenance and forms irrespective of their departmental belonging to the Ministry of Internal Affairs, Committee of National Security or Financial Police. And it gives the reason to believe, that further development of investigatory apparat will lead to creation of an independent body in the system of law enforcement bodies.

REFERENCES:

1. Concept of Legal Policy of Kazakhstan for the period 2010 to 2020 approved by the Presidential Decree of 24 August 2009. – Almaty// Jeti - Zhargy. // P.108.

2. S.T. Tynybekov The concept and general characteristics of the criminal procedural legislation of the Republic of Kazakhstan. Tutorial // Almaty 2000. - P.248.

3. I. Yakimov Criminology, criminal tactics // M., 1929. - S. 397.

4. Judicial statutes of Alexander 2. Charter of the criminal proceedings. - St. P.1985. - P.1104.

5. Stremovsky B.A. The participants of the investigation. - M., 1995. -Page 243.

6. Alauhanov E.O., Sadykov A. Right suspect (accused) and the defendant's professional protection. - Almaty, 2009. - 248.

7. Ospanov G.D. Criminal procedure Republic of Kazakhstan(General). - Almaty, 2000.