THE COMPARISON OF PROSECUTOR'S SURVEILLANCE AND DEPARTMENTAL PROCEDURAL CONTROL IN PRE-TRIAL CRIMINAL PROCEEDING
Keywords:
criminal prosecution, prosecutor's supervision of the legality of pre-trial investigation, the prosecutor; the chief of investigations, distinction of procedural and other authoritiesAbstract
The authors of the article have studied theoretical and applied questions (purpose, grounds, criteria, ways of implementation) of distinction of authorities during the pre-trial investigation between the supervising prosecutor and the chief of investigations (the inquiry department).
The article shows the inconsistency of the current legislation in the issues concerning the regulation of the concept "supervision". The absence in the Criminal Procedure Code of Kazakhstan of the distinction of prosecutorial authorities during the pre-trial investigation in the implementation of the supervision of the legality of pre-trial investigation and criminal prosecution causes a confusion of these diverse prosecutorial functions in practice.
The authors refute the arguments of local opponents about the need to fully transfer the right to implement the management of the investigation of criminal cases to the prosecutor, the authors show the risks of such an erroneous approach. On the basis of the ratio of the staff of investigative bodies and the prosecutor's office, it is concluded that in practice it is impossible to implement this initiative, which does not take into account the institutional and procedural isolation of surveillance and management functions. It is noted that the Criminal Procedure Code of the Republic of Kazakhstan provides only two cases of the prosecutor's management over pre-trial investigation: investigation of a criminal case under the management of the procedural prosecutor and the prosecutor’s management of the interdepartmental investigation team.
In order to establish the criteria for the distinction of organizational and procedural authorities, it is proposed to introduce the concept of "departmental procedural control of the head of the investigative body, the body of inquiry" in the Criminal Procedure Code of the RK.
As a result, there is justification for the further preservation and procedural guarantee of the competence of the head of the investigative body (the inquiry department) in solving the issues of planning and organizing the pre-trial investigation process, determining the direction of the preliminary investigation and inquiry, versioning, choosing tactics and investigative techniques, etc.
The authors conclude that further optimization of the authorities of the investigative and prosecution bodies must be carried out while maintaining a reasonable balance between the prosecutor's supervision of the pre-trial investigation and departmental procedural control with the further development of the investigation mechanism in electronic format, taking into account the staff number and real capabilities of the prosecution and investigative bodies, procedural economy and the need to solve the tasks of the criminal process by its various actors.