Relevant issues of judicial sanctioning of arrest and expansion of judicial control in the Republic of Kazakhstan

In modern times of the development of the Republic of Kazakhstan as a law-governed, social and democratic state there have been conducted rather thorough legal reforms which dealt with functions of judicial authority as well. The issue of judicial sanctioning of arrest as a measure of restraint in criminal proceedings is widely discussed in legal literature. According to the international experience the institute of judicial control and arrest sanctioning in particular is being developed dynamically in many countries. This fact shows at the first sight the transformation of purely professional argument into socially important problem, the problem correct solution of which is directly connected with the development level of democracy and civil society.

Under the conditions of rather high crime rate which is currently observed in Kazakhstan the problem of judicial protection of freedom and immunity of suspected and accused persons will remain relevant and vexed not only from legal but also from social and humanitarian points of view. Therefore the analysis of the problem including historical aspects of it shows the direction of legal policy in our country [1, p. 22].

The problem becomes even more relevant due to the necessity of expanding sphere of application of measures of restraint which can serve as an alternative to arrest. This was stated in “Conception of Legal Policy of the Republic of Kazakhstan during 2010-2020” which determined efficient criminal policy of the state is impossible without appropriate model of criminal proceedings which would correspond with generally recognized international standards of justice. Meanwhile, analysis of law-enforcement experience demonstrated that mechanism of sanctioning measures of restraint requires further improvement as there appear many errors which were not regular even when choosing arrests sanctioned by a prosecutor. The resons for these errors are as follows:

- absence of specialization of judges in accordance with sanctioning issues;

- absence of clean-cut separation of jurisdictions of court and public prosecution;

- imperfection of some prescribed criminal procedures for sanctioning measures of restraint.

Previously the necessity of increasing distance to judges responsible for arrest sanctioning was stated by legal scholars who suggested referring these very functions of sanctioning arrest to competency of administrative or special investigating magistrate.

We also agree with the above opinion especially taking into account decrease of staff size of the judiciary. We believe the released personnel can compensate for deficit of judges who are unconcerned by the outcome of the case and can be able to decide the issue of sanctioning measures of restraint and further prolongation of their terms.

Legislative solution of the above stated problems will make it possible to increase the effectiveness of the existing procedures of restraint measures application [2, p. 17].

The process of arrest sanctioning for the period of independence of Kazakhstan have overcome substantial changes. Thus, up to 2008 arrest sanctioning had been done by a prosecutor in compliance with the norms of criminal proceedings of that time. However, the imperatives of our era and development of the idea of law-governed state made the Republic of Kazakhstan (RK further) move forward. The international experience demonstrated efficiency of judicial mechanism of arrest sanctioning which meets the requirements of democratic society.

In the Republic of Kazakhstan judicial sanctioning started its development after the Law of the Republic of Kazakhstan No.254-III “On making amendments and additions to the Constitution of RK” dated May 21, 2007 came into force and put and end to the discussion of interpretation of Paragraph 2 of Article 16 of the Constitution of RK which concerns possibility of transfer of arrest sanctioning and imprisonment right to court. The new version of the noticed Article unambiguously stated the following: “Arrest and imprisonment are permitted only in cases provided for by statute or law only together with sanction of court and right of defense of the accused. Without the court sanction a person may be apprehended during the period equal of less than seventy two hours”. This constitutional provision defined the court to be the only entity responsible for sanctioning within all stages of legal proceedings and consequently excluding a prosecutor as an entity having this right in prejudicial stages of legal proceedings. Due to introduction of this constitutional provision the national legislation was brought in compliance with Article 9 of International Treaty on Civil and Political Rights ratified in 2005 in Kazakhstan.

The right of sanctioning given to courts resulted not only in making amendments and additions to Criminal Procedures Code of the Republic of Kazakhstan (CPC further) but also in taking organizational measures which include solution of the problem about defining the court, jurisdiction of which would cover an arrest sanctioning. After further discussions of the issue a general jurisdiction district court for criminal trails became responsible for sanctioning an arrest, a house arrest, and prolongation of the terms [3, p. 12].

Nevertheless, the discussions on this issue still exist. Further development of the idea of judicial sanctioning was marked with enactment of the Law of RK “On making amendments and addition to some legislative acts dealing with measures of restraint in the form of an arrest, a house arrest” dated August 30, 2008. The ground for this solution of the problem of sanctioning is related to ratification of a number of international legal documents. One of these documents is International Treaty on Civil and Political Rights according to which every person arrested or apprehended against criminal accusation must be brought without a delay to a judge or another person possessing judicial power according to the law. The trial must be held within reasonable period, released.

However Temiraliyev correctly declares that provisions of other international legal documents dealing with the issue demonstrate there is neither uniform theory of an arrest sanctioning, nor uniform international standards [4, p. 61].

There is no need in deep theoretical research of these discussions we should draw our attention to the application of this measure of restraint. When the institution of judicial sanctioning of an arrest was introduced the practical mechanism of application of this measure of restraint was changed but the participation of a prosecutor was not ultimately excluded. This seems to be reasonable in our opinion. At the same time transfer of this function to courts makes it possible for them to select measures of restraint for an accused (suspected) person in the form of arrest within open procedural order with participation of both defense and prosecution. This allows guaranteeing respect to constitutional rights of citizens even on the sage of prejudicial inquiry. Put it another way, in this case the most important principles of legal proceedings – openness, transparency, and contentiousness - are involved. An arrest sanctioning is held within the framework of court session which means the sanctioning process is open to public. These amendments fully correspond to international standards.

Thus, the court’s sanction declares an arrest to be used only for the defendant suspected in conduction of deliberate crimes which according to the legislation involve custodial sentence for a period of over two years and suspected in conduction of negligent crimes which involve custodial sentence for a period of over three years. As an exception the measure of restraint can be applied to the defendant suspected in crimes which according to the legislation involve custodial sentence for a period of less than 2 years if: 1) he/she has no permanent place for living within the territory of the Republic of Kazakhstan; 2) his/her identity is not proved; 3) he/she infringed the measure of restraint which was imposed earlier; 4) he/ she endeavored to escape from a prosecuting body or a court [5, p. 29].

Within the above stated it seems appropriate to mention that legal proceedings concerning criminal cases are aimed at solving the problems required by criminal procedure law (Article 8 of CPC). They are quick and complete crime detection, accusation and criminal prosecution of the persons who committed a crime, justified lawsuit, correct application of criminal legislation, defense against unsubstantiated accusations and denouncements, vindication, consolidation of legality and rule of law, prevention of crimes and formation of respect for the law.

We believe that initial sanctioning of an arrest for a short term of detention and further court investigation of motions concerning the term prolongation after termination of the previous one in a short period of time as well would make it possible to identify real activities done during the investigation, monitor efficiency of investigating authorities in order to avoid red-tape and as a result prevent long-term prejudicial arrest of a defendant the reason for which is inefficient work of investigating authorities.

In our opinion the point of view of R. Yurchenko is rather interesting. She has suggestions on improvement of crime procedures legislation and in order to reduce the term of detention of a person who has not been accused yet until trial. It seems to be significant to state in Part 1 of Article 152 of CPC that a court may sanction 10 days and nights arrest and the term may be prolonged by motion of the body conducting the crimrinal procedure up to 20, 30, and 40 days and nights but no more than 2 months all together. Further prolongation of the term is performed in accordance with corresponding parts of Article 153 of CPC. It is necessary to add provisions on causes for prolongation of an arrest term (and not in view of in finished investigation) to the Article. There should also be stated that motions aimed at arrest extension should contain reasons provided for by law for expansions of arrest.

In order not to make prejudicial detention of a person in accordance with assumption of innocence long, Article 153 of CPC should state that court sanctions arrest during the period which is defined by it in compliance with the presented data. The period may be 10, 20, 30, 40 days and nights and not 2 months right off [6].

The legislation should state that all data dealing with judicial sanctioning of a measure of restraint including motions, decrees of a prosecutor, court records, court decisions, data on identity of the accused, etc. The documents should be attached to the dossier of the case as they can be important not only for choosing and changing of a measure of restraint on the stage of adjudication of a case but also for ruling judgment of conviction.

According to the international experience currently judicial sanctioning of an arrest is being practiced in over 100 countries around the world, in such places as Europe, Asia, Africa, and South America. The main provisions concerning a person’s rights in arrest and the rights which define processual status of the accused are among constitutional principles in the USA. An arrest warrant in the USA is issued exceptionally by judge, if there is no an arrest warrant the suspected person may be under arrest for no more than 36 hours while in RK a person suspected in commitment of a crime may be under arrest without a warrant for 72 hours.

The experience of Germany demonstrates an arrest warrant is a serious intrusion into personal liberties of the accused who is considered to be innocent during investigations and who as any other citizen has the principal right of personal liberty (Article 2, Paragraph 2, Subparagraph 2 of Constitution). This particular right can be interfered according to the court decision only. For many years (except the period of 1933-1945 of Nazi dictatorship and conditions of German Democratic Republic) it has been firm principle of Germany. Based on the severe experience of Nazi dictatorship this right was described in details and then added to the Constitution of Federal Republic of Germany. Thus, according to Article 104 Paragraph 2 only judge may make a decision on justifiableness and duration of deprivation of liberty. In case of any other deprivation of liberty a person should immediately endevour to obtain the court judgment. Police have no right to keep a person apprehended longer than till the end of the day. In accordance with Paragraph 3 any person temporally apprehended on suspicion of punishable offence must be brought to a judge during the day of apprehension and the judge must inform the person about the reasons for his/her apprehension, examine him/her and allow him/ her to defense himself/herself. The judge must immediately issue a written direction to arrest with specified causes for that or to release the person.

So called exclusive jurisdiction of a judge which covers other invasions of main rights during investigation (search, inventory of property, control of telephone conversations, etc.) in the same way institutionally excepts possibility of a prosecutor’s issuing of direction to arrest. The sphere of competency of a prosecutor is limited with short-term detention in the form of primary apprehension.

Direction for incarceration may be issued only after all the stipulations (§112 of Criminal Proceedings Code) are fulfilled as follows:

• sound suspicion of crime commitment, i.e. there must be high probability that the accused committed an offence which he/she is accused with;

• sound reason for arrest;

Furthermore, an arrest warrant issuing is not legal if it has nothing to do with the meaning of the case and the expected punishment. The reasons for arrest are sound if: the accused is on the run and not catches; there exist possibility that he/she can elude criminal proceedings (possibility of break-out); based on behavior of the accused there exist concern that he/she can destroy, change or hide evidences or he/she can influence witnesses or co-accused, or being free can flee from prosecution and court or can interfere establishment of truth.

In case of high crimes (e.g. murder, participation in terroristic groups, etc.) an arrest warrant is legal without cause of arrest (§112, section 2). This provision according to Federal constitutional court is risky from constitutional point of view and because of that in order to limit it there is the following interpretation: an arrest warrant in these cases is possible (only) if there is a possibility of break-out and the accused can flee from prosecution and court or can interfere establishment of truth.

Application for an arrest warrant is to be handed by a prosecutor to a judge of the local area court (investigating magistrate; §125 of Criminal Proceedings Code). German Criminal Proceedings Code unlike Kazakhstani Criminal Proceedings Code does not require 3 stages of legal proceedings (police – prosecution - court) with strictly stated terms (quantity of hours is stated in the document) and so it takes less time.

According to §128 of Criminal Proceedings Code of Germany the accused should be brought to a judge immediately not later than at the end of the day following the day of apprehension. For investigation (especially interrogation) which is necessary to substantiate application for an arrest warrant prosecution and police have time which starts from the moment of pre-apprehension and lasts up to 48 hours minus 1 minute. That is why in severe or hard cases police or prosecution will perform pre-apprehension of the accused in/ after midnight in order to have all the necessary time for investigation.

To avoid unnecessary delays every district judge should have judicial alert office; it ensures availability of a judge (in order to bring an accused to him/her) anytime, even at night. Supreme Constitutional Court of Germany strictly monitors this obligation (requirement to accelerate cases involving arrest) [7, p. 52].

Introduction of judicial sanctioning of arrest is a great achievement of legal reform in Kazakhstan and is evidence that the national legislation becomes closer to international standards of fair criminal proceedings. Application of this practice establishes conditions for further development of judicial control of preliminary investigation and improves mechanisms of human rights protection within legal proceedings.

Thus, according to international laws every apprehended person has right to stand his/ her own trial for assessment of his/her arrest validity. The main function of court is this particular one and also choosing the form of criminal proceedings aimed at good behavior.

It also should be taken into consideration that the international legislation unlike the tradition taken from Soviet times uses the term ‘arrest’ as it was stated above to define apprehension in case of suspicions in commitment of an offence no matter criminal or administrative. Therefore, Habeas Corpus guarantee should be applied to all the situations of deprivation of liberty unexceptionally.

Nevertheless, comparison of above mentioned standards of Habeas Corpus application and proceedings of judicial arrest sanctioning stipulated by CRC of RK demonstrates inconsistency of Kazakhstani proceedings and generally accepted international legislation interpretation of the term. According to Article 132 of CPC investigating body has a right to keep a suspected person apprehended up to 72 hours. Control of apprehension validity remains within sphere of responsibility of prosecution as court is not authorized to analyze validity of such an apprehension itself. The court during the process of review of a prosecutor’s decree on supporting examining official’s motion to arrest may only sanction or refuse detention (Article 150 CPC of RK). Thus, the court serves as an entity which merely agrees or disagrees with prosecution motions on arrest of a suspected or accused person. When the investigating agencies decide not deprive a suspected person’s liberty and put him/her under restraint having nothing to do with detention the court may be excluded from the process of detention validity analysis [8].

According to protection of human rights Kazakhstani judicial arrest sanctioning is imperfect because it does not ensure main purpose of Habeas Corpus, i.e. validity assessment for deprivation of liberty by state authority.

Thereby there is a necessity in establishing a separate specialized judiciary dealing with proceedings of choosing a measure of restraint in the form of an arrest and sanctioning other investigative actions affecting principal constitutional rights of a person (investigating magistrates). This surely will allow to avoid any prejudgment during proceedings and remove additional burden from the judges. It is recommended to transfer right of sactioning such investigative actions as private premises search, audio interception and record of conversations and others which affect constitutional rights from prosecution to the court.

It is recommended to amend Articles 290-2 and 290-3 of CPC in order to make it possible to grant a right of sanctions of measures of restraint concerning a defendant to specialized inter-district juvenile courts, military criminal courts and millitarygorrizon courts. It is essential to note that order on application for a measure of restraint sanctioning in the forms of an arrest or a house arrest should be accompanied by the data proving the causes stated in the order to put under restraint (absence of data on identity of the accused, absence of permanent place of residence of the accused within the area of RK, and available data on possible escape of the accused, further criminal activities, or barring impartial investigation). Also there should be proved that lesser sentence will not prevent ensuing of consequences stated in Article 139 of CPC. The courts should fairly judge submissions of the motion on an arrest warrants with a view to find out real facts legitimating application of a measure of restraint in the form of an arrest.

REFERENCES

1. Ахпанов А.И. Арест в качестве меры пресечения: проблемы судебного контроля и санкционирования: монография. - Алматы: Полиграфсервис, 2005. – 183 с. / Arkhapanov A. Arrest as a measure of restraint: problems of judicial control and sanctioning: monograph (in Russian)

2. Борчашвили И. Вопросы совершенствования процедур мер пресечения в уголовном судопроизводстве. // Заңгер 2010, № 11. С. 17-18. / Borchashvili I. Issues of procedural improvement of measures of restraint in criminal proceedings (article in Russian)

3. Муталяпова А.Т. Совершенствование законодательства по санкционированию ареста. // Мир закона 2009, № 5. С. 11-14. / Mutalyapova A. Improvement of legislation concerning arrest sanctioning (article in Russian)

4. Темиралиев Т. Санкционирование ареста судом: вопросы правоприменительной практики // Заң және Заман 2010, № 3 (112). С. 60-62. / Temiraliyev T. Arrest sanctioning performed by court: issues on law-enforcement practice (artic e in Russian)

5. Бейбитов М. Применение санкций: особенности и основные тенденции современной правовой практики // Заңгер 2010, № 11. С. 28-30. / Beibitov M. Application of sanctions: peculiarities and main tendencies in modern legal practice (article in Russian)

6. Юрченко Р. Совершенствование законодательства о судебном санкционировании мер пресечения // www.subcourt.kz / Yurchenko R. Improvement of legislation concerning judicial sanctioning of measures of restraint (web, in Russian)

7. Дитрих Байер. Санкция на арест (опыт Германии) // Заңгер 2011, № 1. С. 52-54. / Dietrich Bayer. An arrest warrant (German experience) (article in Russian)

8. Канафин Д. Основные принципы процедуры Habeas Corpus и судебное санкционирование ареста в Республике Казахстан // www.subcourt.kz / Kanafin D. Main principles of Habeas Corpus procedure and judicial sanctioning of arrest in the Republic of Kazakhstan (web, in Russian)