Zhabagin D.Zh.
Master of the group JC-1
Specialties: "Jurisprudence"
Specializations: "Corporate Law"
JSC "Kazakh State University University"
To the question on legal character of tacit investigative actions according
to the new Criminal Procedure Code of the Republic of Kazakhstan.
Annotation.
On 1 January,
2015 came into force a new Criminal Procedure Code of the Republic of
Kazakhstan, signed by head of state on 4 July, 2014.
According to the Legal Policy Concept the new Code of Criminal Procedure is aimed
to simplify and improve the efficiency of criminal proceedings, including the
simplification of the pre-trial proceedings. According to the draftspersons, in
the work on the new versions of the Criminal Procedure Code`s draft is widely
used the experience of developed countries of the continental system. One of
the important and conceptual innovations is – tacit investigative actions. This novelty
certainly will allow taking criminal procedure legislation of the Republic of
Kazakhstan in compliance with the existing realities, constitutional rights and
freedoms, as well as international standards.
Key
words: criminal process, investigation, covert
surveillances, special investigation
activities.
Starting from 4 July 2014, in the result of signing the new Criminal
Procedure Code by President of the Republic of Kazakhstan [1], we have entered to
new period of development and formation of the criminal procedure legislation
of our country.
It is worth noting that the new Criminal Procedure Code is conceptually
simplified pre-trial proceedings by the fact that the legislator has introduced
the concept of "pre-investigation" and all investigative actions
affecting the constitutional and other rights and freedoms shall be made only
with the warrant of the prosecutor.
An important innovation was the regulation of the order and production of
special investigation activities in the framework of criminal proceedings by
norms contained in Chapter 30 of the CPC "Tacit investigative actions".
In the context of this article, the main interest is exactly "Tacit investigative
actions", which are carried out exclusively with the warrant of the
prosecutor.
In accordance with the article 7 of the Criminal Procedural Code, the
definition of tacit
investigative actions is following:
«tacit investigative action - an action,
carried out during the pre-trial proceedings without informing of the involved
in the criminal trial persons whose interests it relates, in the manner and in
cases stipulated by this Code».
Also in the article 231 of CPC RK, legislator gave list of tacit investigative
actions, that creates the basis for preventing the latitude of discretionary
powers:
1) undercover audio and (or) video
surveillance of the person or place;
2) tacit control,
interception and removal of information, transmitted over electrical network
(telecommunication) communication;
3) secret
obtaining of the information about the connections between subscribers and (or)
subscriber units;
4) unofficial
collection of information from computers, servers and other devices for
collecting, processing, accumulation and storage of information;
5) undercover
control of postal and other items;
6) unspoken
penetration and (or) site survey;
7) secret
surveillance of a person or place;
8) secret
controlled delivery;
9) secret
controlled purchase;
10) secret
introduction and (or) imitation of criminal activity [1].
Accordingly,
conducting of tacit investigative actions with the warrant of the prosecutor, can improve the quality indicator in
the provision and protection of citizens against violations of their
constitutional rights to privacy.
However,
before determining the legal nature of tacit
investigative actions under the
new Criminal Procedure Code of the Republic of Kazakhstan, it is advisable to
determine the nature of the investigation as a whole.
Thus, according to the view of R.S. Belkin, "investigative action -
is action on collecting, research, evaluation and use of evidences carried out
by the investigator (inquiry body) or prosecutor, provided by the criminal
procedure law" [2].
On this occasion, S.A. Shafer noted that "... procedural scientists
differently interpreted the term "investigation action". For example,
A.M. Larin, I.F. Gerasimov and many other scientists, based on the activity of
the subject believed that "... everything that makes the investigator
pursuant to the requirements of the criminal procedural law is investigation
actions. This broad interpretation of the term that places a sign of equality
between the investigative and procedural actions" [3, P. 12-13].
It should be noted that the legislator does not equate or identity
between definitions "investigations" and " tacit investigative
actions " as meaning of the term "tacit" gives an another
character to investigation actions.
So, turning to the Russian language`s dictionary edited by S.I.
Ozhegova, we meet the following interpretation of the term "tacit":
... not known to others, not clear, secret; tacit surveillance ..." [4].
Accordingly, the definition of tacit investigative actions given in the new
Criminal Procedure Code of the Republic of Kazakhstan corresponds to the meaning
of word that imply activities conducted during the pre-trial proceedings without
informing of the involved in the criminal trial persons whose interests it
relates, in the manner and in cases stipulated by this Code (p. 12 Art.
7 CPC RK) [1].
For example, Kazakhstan's legal scholars have identified them as a kind
of investigation (detection) activities, information about the facts and
methods of which cannot be disclosed, except for cases stipulated by this Code
[5, P. 42].
B.M. Nurgaliyev and K.S. Lakbayev note that "... tacit investigative
actions are actions that are performed if for clarifying the
circumstances, which is subject to proof in criminal proceedings, information
about the facts must be obtained without informing the involved persons in
criminal proceedings and individuals who could provide this information. They
are held on conditions that establishing circumstances of the crime to be
proved is not possible in any other way" [6, P. 164].
Thus, we can assume that, by the opinion of the legislator, norms of
Chapter 30 of CPC RK aimed at further
integration of the criminal trial and special investigation activities that
meets the needs of counteraction to organized forms of criminal activities and
corruption, contributes to the widespread use of the ORD data in criminal
proceedings. The introduction of the ORD methods in criminal proceedings
removes the continued isolation between operational staff and investigators
during the investigation of criminal cases, provides active use of the data of
this activity in criminal proceedings, making the work of operational staff a
transparent, objective, guaranteed, legitimate and justified.
In other words, the investigator does not comply, does not cover the
tasks which put in front of operational units in connection with the
investigation of the crime. ORD in the interests of criminal proceedings is
produced as usual. Moreover, according to p. 2 article 232 of the new Criminal
Procedure Code, tacit
investigative actions, except for the secret control of postal and other items,
“…shall be performed on behalf of the body of pre-trial investigation by the
authorized unit of the law enforcement agency or special state body with using
the forms and methods of operational and search activities (p. 2 article
232 CPC RK).
But there is an another position.
A. Ya. Ginzburg believes that "...the introduction of the "tacit
(i.e. secret) investigative actions " to the domestic criminal
proceedings, proclaimed democratic principles, including the implementation of
legal proceedings on the basis of competitiveness and equality of the parties
rejects the criminal proceedings to not so distant ages of inquisitorial
nature, from which Kazakh legislator refused earlier. In this case, an
artificial fusion of two different by form and essence of the activities into
one is unacceptable, because it leads to the eventual destruction and chaotic
processes of these government activities and their legislative framework"
[7].
The legislator determines tacit investigative actions as a kind of
investigative actions" carried out, if to clarify the circumstances, subject to
proof in a criminal case, the information about the facts must be obtained
without informing the persons, involved in the criminal process, whose
interests they affect" (p. 1 art. 232 Criminal Procedure Code).
Manufacturing of tacit investigative actions, according to N.E.
Orumbaev, "... perhaps on criminal offenses, sanction for commission of
which is imprisonment from one year and above, as well as on crimes, prepared
and committed by a criminal group. For detection, suppression and disclosure
other criminal offenses are allowed implementation of tacit investigative
actions of a person or place, tacid controlled delivery, tacit control purchase
and tacit introduction and (or) imitation of criminal activity. In case of a threat to
life, health, property of individuals at their request or with their written
consent it is permitted to carry out the tacit audio and (or) video
control of a person or place is permitted, as well as the tacit control,
interception and collection of information transmitted by electrical networks (
telecommunication) communication" [8, P.77].
In this cases pre-investigation organ make mandatory notification of the procurator
within twenty-four hours after the decision-making.
Tacit investigative actions are
carried out in respect of:
1)
the person who in the statement, reporting a criminal offence is specified as
the person, preparing and committing or committed the offence, or in respect of
which there are other reasons to believe that he (she) is relevant to the
offence under investigation, or has knowledge of the preparing and committing
or committed criminal offence;
2) the suspected;
3) the victim, with his (her) written
consent;
4) a third party, if there is evidence that
a third person receives or transmits information relevant to the case;
5) the place, in case if there are
circumstances or expected their appearance, which may be relevant to the case.
It is prohibited to carry out undercover investigative actions against lawyers,
offering professional assistance, except in cases where there is reason to
believe that they prepared or committed grave or especially grave crime.
Tacit investigative actions, such as:
1) undercover
audio and (or) video surveillance of the person or place;
2) tacit control, interception and
removal of information, transmitted over electrical network (telecommunication)
communication;
3) secret obtaining of the information about the connections between
subscribers and (or) subscriber units;
4) unofficial collection of information
from computers, servers and other devices for collecting, processing,
accumulation and storage of information;
5) undercover control of postal and other items;
6) unspoken penetration and (or) site survey are carried out by the
decision of the body of pre-trial investigation shall be given by the
Procurator General of the Republic of Kazakhstan and his (her) deputies,
procurators of regions and equivalent procurators.
Sanction shall be
given only to the registered in the manner, prescribed by this Code reports and
statement of crimes. At the end of the tacit investigative action all relevant
to the case materials, obtained in the course of its conduct, shall be sent in
compliance with the privacy to the body of pre-trial investigation by a cover
letter, who may, at any time, request from an authorized unit of the law
enforcement agency or special state body the results of their activities for
study, evaluation and initiation to the investigation materials.
At the same time, despite the relatively wide regulation of this issue, an
analysis of regulation of tacit investigative actions’ production order in the
new Criminal Procedure Code appears a number of controversial issues.
Firstly, regulation of some tacit investigative actions was carried out
without proper systematicity, with replays and competition of legal norms. For
example, such method of obtaining
evidences as visual observation is regulated by two species of investigative
actions (tacit audio - and (or) video control of a person or place, secret
surveillance of a person or place), although in terms of content, and,
consequently, its corresponding procedural form it might be one and only
universal method for this investigative action.
Secondly, institute of tacit investigative actions has not received the
necessary procedural and perfect forms that would serve as a sufficient guarantee
of obtaining reliable evidences and protection of human rights and freedoms.
Thus, an analysis of recent studies shows that the issues of formation of the
tacit investigative actions institute is not enough studied, although the study
of the problems becoming more active [9, P. 60].
To summarize this article, we can conclude that unspoken status of
investigative actions is able to give considerable amount of material not only
for practitioners and law enforcement agencies, but also for scientific
generalizations, and for identify ways to improve the organization and activity
of modern law-enforcement bodies of the Republic of Kazakhstan.
List of sources:
1. Criminal Procedure Code of the Republic of Kazakhstan dated 4 July,
2014 № 231-V ZRK. In edition with Law of the RK dated
31.10.2015 № 378-V // Kazakhstanskaya pravda - 10.07.2014. - № 133
(27754).
2. Belkin R.S., Liphshits Е.М. Taktika sledstvenniykh deystviy. - М.: Noviy urist, 1997. — 176 p.
3. Sheipher S.А. Sledstvennye deystviya. Osnovaniya, processual`niy
poryadok I dokazatel`stvennye znacheniya. -Samarа. 2004. - 225 p.
4. Ozhegov S.I. Tolkoviy slovar` russkogo yazika / S.I. Ozhegov, N.Yu. Shvedova. — М.: Azbukovnik, 2000. — [ER]. Available: http: //ozhegov.org
5. Bachurin S. N., Syzdikov К. Т., Erzhanov Т. М. Kriticheskye zamechaniya I predlozheniya po proektu Zakona RK «О
vnesenii
izmeneniy
I
dopolneniy
v
nekotorye
zakonodatel`nye akty Respubliki Kazakhstan po voprosam sovershenstvovaniya
ugolovnogo
I
ugolovno-processual`nogo zakonodatel`stva» (po voprosam operativno-rozisknoy deyetel`nosti)// Khabarshi—Vestnik Karagandinskoy
akademiy
MVD
RK
im.
B.
Beisenova.
— 2011. — № 4. — P.
41-43.
6. Nurgaliyev B.М., Lakbayev К.S. Neglasnye sledstvennye deystviya: istoriya, ponyatie, problemy, perspektivy // Situacionniy podkhod v uridicheskoy nauke I pravoprimenitel`noy deyetel`nosti: Aktual`nye problem ispol`zovaniya situatsionnogo
podkhoda
v
uridicheskoy
nauke
I
pravoprimenitel`noy deyetel`nosti. Materyali mezhdunar. nauch.-prakt. konph. – Kaliningrad:
Izd-vо BFU im. I.
Каntа,
2012. — P.
162-165.
7. Ginzburg А. Ya. О tak nazivaemykh «neglasnykh sledstvennykh deystviyakh» // Setevoe izdanie
«zakon.kz»
/ http://www.zakon.kz/4568011-o-tak-nazyvaemykh-neglasnykh.html
8.
Orumbayev
N.
Е. Neglasnye
sledstvennye
deystviya
po
novomu
UPK
Kazakhstana
// Vestnik
Omskoi
uridicheskoy
akademiy.
- 2015. No 3 (28). – P.
75-77.
9. Uvarov V. Sistema neglasnykh
sledstvennykh (rozisknyhk) deystviy pо UPK Ukrayni / V. Uvarov // Zakonnost`. – 2013. –
№ 11. – P. 58–61.
РЕЗЮМЕ
В представленной статье
автор анализирует правовую природу негласных следственных действий
согласно новому Уголовно-процессуальному кодексу Республики Казахстан, а также
делает вывод о значимости статусе «негласных», для повышения раскрываемости
правонарушений и совершенствования организации и деятельности современных
органов внутренних дел Республики Казахстан.
ТҮЙІН
Осы бапта, автор Қазақстан Республикасының жаңа
Қылмыстық іс жүргізу кодексіне сәйкес жасырын тергеу
құқықтық табиғатын талдайды, және
құқық бұзушылық қылмыс анықтау
жақсарту үшін және Қазақстан Республикасының
қазіргі заманғы құқық қорғау
органдарын ұйымдастыру мен олардың жұмысын жақсарту
үшін «Нелегал» мәртебесін маңызы туралы жасасады.