Smailova E.K.
master of 2 course, Law
faculty, Al-Farabi Kazakh National University
SOME QUESTIONS OF POWERS OF THE
DEFENDER ON COLLECTING OF PROOFS IN CRIMINAL LEGAL PROCEEDINGS
According to the Constitution of the Republic of
Kazakhstan legal proceedings are conducted on the basis of competitiveness and
equality of participants. This situation has found the further development in
the criminal procedure legislation, confirming thereby that the modern concept
of the Kazakh criminal legal proceedings is based on the principle of
competitiveness of the parties and is focused on strengthening of protection of
constitutional rights and legitimate interests of participants of process,
toughening of legal requirements to admissibility of proofs.
At all times and characteristic of a competitive
design of process allocation of three main procedural functions was
traditional: charges, protection and permissions of business, and obligatory
elements of competitiveness are: a) separation of charge from court; b)
procedural provision of charge and protection as parties; c) procedural
equality of the parties; d) active, independent position of court in relation
to the parties [1].
As R. D. Rakhunov fairly noted, "the main thing
in protection is a rendering legal aid to the client, representation of such
data to court which disprove charge or soften responsibility of the
defendant" [2]. For this reason on the majority of criminal cases the
burden of search and submission of these data lays down on the defender's shoulders.
The defender is the person which is carrying out
protection of the rights and interests of suspects and defendants in the order
established by the Code of Criminal Procedure and giving them legal aid by
criminal case production.
The defender in criminal legal proceedings is given
extensive authority. The Code of Criminal Procedure of RK, giving to the
defender ample opportunities for participation in production on criminal cases,
I have strengthened also his role in proof. However to this day one of old
debatable questions of the theory and practice of criminal trial — a question
of investment of the defender with the right of collecting of proofs — remains
very disputable and urgent.
A number of lawyers with satisfaction note that the
Code of Criminal Procedure of RK provides to the lawyer — to the defender an
opportunity to independently collect proofs on criminal case. Similar judgment,
in our opinion, can be hardly considered well-founded as collecting of proofs
represents their search, detection, reclamation, representation and the
subsequent procedural registration (fixing) in the order established by the
law. Thereby here the informative and certifying parties of proof are
inseparably linked. And for this reason we consider that collecting and submission
of evidentiary information by the defender happens in rather specific
conditions and needs more in-depth study.
The
legislator has affirmed the right of the defender not only to represent, but
also to collect the proofs necessary for rendering legal aid. According to this
norm the defender has the right to collect proofs in the way:
receiving
objects, documents and other data;
poll of
persons from their consent;
reclamations
of references, characteristics, other documents from public authorities, local
governments, public associations and the organizations which are obliged to
provide required documents or their copies [3].
According to E. B. Mizulina, investment of the
defender with powers on collecting of proofs serves one of guarantees of the principle
of competitiveness. However, in our opinion, such conclusion is hasty as to
announce the right and to guarantee his realization — not same. It is necessary
to understand how this provision of the criminal procedure law is provided with
the real mechanism of its application.
Today in legal literature scientists and practicians
even more often express opinion on the right of the defender on collecting and
submission of proofs. So, a number of authors are unanimous that the idea of
formation of competitive criminal trial hasn't been realized by the legislator
in a due measure.
The legislator lists that he admits proofs, the right
to collect and represent which is provided to the defender, and with another —
the list of proofs on criminal case doesn't include point on recognition of the
data submitted by the lawyer as proofs [4].
We believe that the criminal procedure law doesn't
grant to the defender the right independently to collect proofs. As proofs are
allowed: testimonies of the suspect, defendant; testimonies of the victim,
witness; conclusion and testimonies of the expert; conclusion and testimonies
of the expert; material evidences; protocols of investigative and judicial
actions; other documents. Besides, it should be noted that proofs have to correspond
to a number of requirements of the criminal procedure law, and one of these
requirements — legality of a way of obtaining the proof. As B. S. Teterin
correctly notes, "legality of a way of obtaining proofs is an integral
part of the concept of the proof".
In such a way the data collected by the defender it is
too only information which without the corresponding procedural registration is
deprived of a reliability sign. And to operate in criminal trial with proofs,
it is necessary to fix the received data in the appropriate procedural way on
the basis of the relevant standards of the criminal procedure law. Only after
criminal procedure collecting the data carriers found by the defender gain
quality of sources of proofs, and data become the procedural proof.
In our
opinion, the right position in this question is also taken by S. A. Sheyfer who
specifies that "to recognize the presented object as the proof, to enter
him into business, i.e. to include in system of already collected proofs is an
exclusive prerogative of body of investigation, the prosecutor and court.
Making decision on familiarizing of a subject or the document to business in
effect represents the act of fixing of the proof finishing the moment of
collecting (formation) of the proof. Until such decision is made — the proof
doesn't exist yet. It
still "isn't collected", not formulated".
On the basis of the above we come to a conclusion that
in criminal legal proceedings owing to the conferred powers, the defender has
the right to collect and submit objects, documents, other data, and also
references, characteristics and other documents of public authorities, local
governments, public associations and the organizations which, in his opinion,
can become the proofs justifying or extenuating fault of his client.
References:
1. Rakhunov R. D. Participants of criminal procedure
activity. M, 2005. 217 p.
2. Vishnevskaya O.V. Competitive activity of the
defender on preliminary investigation: Izhevsk, 2004. 21 p.;
3. Kuznecov N., Dadonov S. The right of the defender
to collect proofs//Russian justice. 2002. No. 8. 32 p.;
4. Stetsovsky Yu. I. Criminal procedure activity of
the defender. M, 2002. 60 p.
5. Pinkhasov B. I. Use of documents in proof. Tashkent,
2007. 84 — 85 p.