Salamatova B.Z. as a Master of
jurisdiction
Kostanay State University, Kostanay, Kazakhstan
About content of judicial control at the prejudicial
stages of criminal procedure
Expansion and strengthening of judicial and control
powers of court at the prejudicial stages of criminal jurisdiction are
implemented in the aim of ensuring of defense of constitutional rights and
freedoms of citizens, guaranteeing of lawfulness. Taking into account the
present level of legal conscious of officials of bodies fulfilling of
preliminary investigation is the urgent aim.
In spite of numerous researches the institute of
judicial control has no simple attitude, and numerous changes and additions
included to RK Criminal procedures Code; don’t solve problem questions [1].
Judicial control at the present stage offers the
totality of means specified in criminal and proceeding law directed at
realization of constitutional functions of judicial power. At least they are
not called to allow illegal and not
grounded restrictions of human rights in criminal procedure, to its
rehabilitation in these rights or opportunities for their compensation with the
means of law [2].
The main point of judicial control at the stage of
preliminary investigation of criminal cases is the judges’ activity directed to
the defense of constitutional rights and freedoms of human and citizens
protected by law, and suppression of illegal and not grounded actions of
officials at pre court stages of criminal jurisdiction.
As a rule the judges’ activity at this stage is
preliminary and auxiliary, has a great
importance for qualitative carrying out of justice, guaranteeing of citizens’
rights and freedoms, and also interests of legal persons involved into the
criminal process.
Checking and estimation of lawfulness and validity of
actions and decisions of detective bodies (inquiry and investigation bodies),
restricted constitutional rights of human is the main point of judicial control
[3].
To turn out what guarantees of judicial defense are
at pre court stage of criminal process it’s necessary to pay attention to those
points of law according to which the implementing of a number of proceeding
functions are placed on the court.
Point 3
Article 59 of CPC defines the court power in criminal procedure and finds out
that the court hears the appeals at the pre court stages of criminal process on
the decisions of criminal prosecution bodies in the cases and order specified
in the CPC.
The judicial control of pre court execution on
criminal cases is a new function placed on the courts in the connection of the
RK CPC taking [4]. Hearing of the appeals on the decisions of criminal
prosecution bodies is placed on the courts in accordance with the Article 109
of the CPC at the stage of pre court execution on the case.
In this connection the courts have the right to hear
the interested persons on such proceeding decisions taken at the pre court
stage of criminal process: rejection from the taking of application about a
crime, breaking the law during the rejection of the criminal case institution,
rejection, suspension and
discontinuance of criminal case, compulsory location in medical
establishments for making of judicial and medical examination, conduction of
search and taking out, seizure on property, using of mortgage, committing of
other actions (inaction) decisions before the stage of court. In this case
rehabilitation of human and citizens’ rights and freedom become difficult or impossible
[5].
According to the first point above stated standard
citizens on their own chose can apply either court after they knew about the
taken decision or procurator who placed on function of supervision under
lawfulness of preliminary investigation.
In such cases when a procurator left the appeal
without satisfaction, a claimed person has a right to hand an appeal in a
court.
It’s necessary to pay attention to the point 2
Article 104 of CPC doesn’t conform to this regulation so long as regulates the
order of appeal handing on the actions and decisions of inquiry and preliminary
bodies. This legal standard points out that the appeals of arrested or inmates
on the actions and decisions of inquest officer, inquiry body, and investigator
must not be sending by the administration of places of detention to the court
but to the procurator. As for appeals on the procurator’s decisions would be
send to the higher procurator.
First of all it is conditioned by the circumstance
that supervision under the observance of lawfulness in the places of detention
in accordance with the law is carried out by procurator. But at the same time
the similar regulation of the order of appeal handing practically abolishes the
right of a person specified in the point 2 Article 104 of the CPC on the
handing to the court immediately omitting a procurator.
The appeal handed in a court according to the Article
109 of the CPC must be considered with observance of the following proceeding
order:
1) Jurisdiction of appeal is related to the
competention of district or the court equated with the district with the
observance of territorial jurisdiction defined by the location of procurator’s
office, procurator who left the appeal of a claimed person without satisfaction or answer;
2) appeal is considered by a judge individually;
3) consideration of appeal is carried out with
limiting of publicity in a closed court trial;
4) court must consider appeal during 10 days;
5) it is allowed the consideration of appeal by
default, as far as the compulsory
presence of a claimed person and a procurator, whose decision is appealed,
isn’t regulated by the law.
Participation of a claimed person and a procurator in
the court trial can be compulsory only in such cases when a judge considers it
necessary. And in this case a law-maker doesn’t point out how a court will act
if a claimed person or a procurator don’t appear in the court trial and on the
demand of a court (leave the appeal without consideration in the absence of
both, leave the appeal without satisfaction in the absence of a claimed person,
satisfy an appeal in the absence of a procurator?)
During the consideration of appeal in the court trial
a court can demand necessary materials for taking a sound and objective
decision about validity of appeal.
In this connection the point 3 Article 109 of the CPC
places the responsibility to a procurator to produce materials demanded by him.
But at the same time it isn’t mentioned in this article how a court will act if
during the time established by the law for consideration of appeal, a
procurator didn’t produce demanded materials. So P. Yurchenko writes: “Article
160 of the CPC and other regulations about measures of proceeding compulsion
don’t specify imposition of fine on a procurator for non-execution of
proceeding duties. A legislator doesn’t point out whether non-production
demanded materials by procurator can be reason for extension of the term of
consideration of appeals by court and be subject to prolong this term”[4].
The order of court trial conducting on the appeal of
the actions and decisions of criminal prosecution bodies is not regulated by
the law in detail. It is only noticed that a claimed person and a procurator
being in the court trial have a right to give explanations. As far as the law
determines giving explanation in the court trial as a right not a duty it can
be supposed that the procurator participating in court trial is not obliged to
give elucidations and explain the court reasons and grounds of taken decision
by him during the consideration of similar appeal of a claimed person addressed
to him before. Meanwhile such position of procurator can make difficulties in
finding out circumstances necessary for correct solving of appeals.
In consequence of it in our opinion guarantee of
judicial defense of rights and freedom of persons in the course of preliminary
investigation loses its importance in the case of imperfection of regulation of
order of handing to court with appeal on the actions of criminal prosecution
bodies. In this situation favorable conditions for possible abuse are created.
They think that taking into account the above stated
situation the legislation on the strengthening of guarantee of the human rights
by means of the expansion of sphere of free access to the justice would be
improved.
Literature:
1. Taitorina
B.A. Judicial control at the pre-court stages of criminal proceeding // Legal
reform. – 2010. - ¹9. – P.39
2. Kovtun N.N.
Judicial control in the criminal proceeding of Russia: notion, essence, forms.
– Nizhniy Novgorod. 2002. – P.7
3. Kuanaliyeva
G. Law nature of judicial control in criminal proceeding // Legal reform in
Kazakhstan. – 2009. - ¹4 (48). – P.57
4. Yurchenko P.
About access to the justice in criminal proceeding in the Republic of
Kazakhstan // Questions of proceedings. - supcourt.kz
5. The Republic
of Kazakhstan Criminal Proceeding Code, 1997, p. 335