Subject: Procedural Law of the Republic of Kazakhstan

Plan:

- Fundamentals of Criminal Procedure and Civil Procedure. The concept of the essence, goals and objectives of the criminal procedure law. The principles of criminal justice. Procedural time. The participants of the criminal process. Sources of evidence.

- Object and science system of civil procedure. The principles of civil procedure. Civil procedural and legal entities. Procedural time. Claim. The trial of civil cases.

Keywords: criminal procedure and civil procedural law, the lawsuit.

The concept of the essence, goals and objectives of the criminal procedure law. The principles of criminal justice. Procedural time. The participants of the criminal process. Sources of evidence.

The subject and science system of civil procedure. The principles of civil procedure. Civil procedural and legal entities. Procedural time. Claim. The trial of civil cases.

1. Procedural law. Law enforcement agencies. There is a division of the law in jurisprudence to the substantive and procedural. Substantive law is designed to regulate the content of legal and procedural rules governing the protection of the substantive law of the violations. The norms of procedural law governing jurisdictional, ie law enforcement process, which is carried out in the form of a specially empowered law enforcement authorities (the court, prosecutors, police, etc.) in relation to crimes and other violations of law or in disagreement, ie when legal entities can not come to an agreement about their rights and responsibilities, and go to court. All procedural rules are included in the criminal procedure and civil procedural law, and two substantive rules - in constitutional and administrative law, as their constituents. In addition to these rules, there are rules governing the procedure for other forms of public- powerful, law enforcement, which are also associated with the implementation of the substantive law, but do not have the jurisdictional nature (for example, marriage registration, issuance of a permit to possess firearms, law-making activities, etc..). These standards are commonly referred to as " procedural " and referred to the substantive.

Thus, the procedural law can be defined as a set of (system) of legal rules governing the procedure, a form of jurisdictional enforcement of the competent public authorities of officials towards the implementation of the norms of various branches of substantive law.

Law enforcement is carried out with the help of law enforcement agencies in the law of procedure. The activities of the state and its organs covers many areas of government and public life. It occupies a central place in the execution of tasks to ensure the rule of law and the rule of law, protection of human rights and freedoms, protection of rights and legitimate interests of the public and non-governmental organizations, labor groups, combating crimes and other offenses.

A much smaller range of bodies are specially engaged in ensuring law and order, those that exist solely or primarily for such a role. They are generally called as law enforcement authorities, ie bodies, which are designed to protect established by the Constitution of Kazakhstan, other laws and legal regulations shape the lives and activities of the state and society as a whole. Among these areas (functions) should include: constitutional, justice, organizational support vessels, public prosecutor's supervision, detection and investigation of crimes, the provision of legal aid and criminal defense.

Courts occupy an important place in the field of law enforcement activities. The court shall use rights, realizes its powers, and is entered in the scope of the rights and responsibilities of citizenship or legal persons while its administration of justice or making a decision imposing a sentence.

The judiciary is used in criminal, civil and other forms of statutory authority the court proceedings whicha are aimed at the review and resolution of all cases and disputes about the violation of rights. The judicial power in the Republic of Kazakhstan belongs only to the courts in the face of the permanent judges and jurors involved in criminal proceedings in the cases and manner provided by law. Justice in the Republic of Kazakhstan is carried out only by the court. Judicial authority is exercised on behalf of the Republic of Kazakhstan and shall be intended to protect the rights, freedoms and legitimate interests of citizens and organizations, ensuring compliance with the Constitution, laws and other normative legal acts, international treaties of the Republic. Judicial power is exercised through civil, criminal and other statutory forms of legal proceedings. The judges in the administration of justice are independent and are only the subject to the Constitution and the law. The adoption of laws or other regulations that would impair the status and independence of judges are not allowed. Any interference in the activities of the courts of justice is prohibited and punishable by law. On specific cases, judges are not accountable.

In the exercise of their authority court decisions and the requirements of the judges are binding on all state authorities and their officials, individuals and legal entities. Non-execution of court decisions and requirements shall be judged by an established law.

Organizational communication governed by the law, the Constitutional Law " On the Judicial System and Status of Judges of the Republic of Kazakhstan" dated December 25, 2000, and functional are governed by the legislation on legal proceedings (civil and criminal procedural law). Court of Justice of all levels are formed, reorganized and abolished by the President of the Republic by the representation of a legal authority.)

(The judicial system consists of three units and four instances. Part of the judicial system is the set of vessels with equal authority. Judicial system in the Republic of Kazakhstan consists of the Supreme Court of the Republic of Kazakhstan, regional and equivalent courts, district (city), and the military courts.

Instance is the notion of justice, it defines the stages of cases. In Kazakhstan 4-instanced judicial system is functioning: 1) the trial courts, and 2) the appeal, and 3) the appeal, and 4) the supervisory authorities.

Prosecuting authorities. According to the Art. 83 of the Constitution of the Republic of Kazakhstan and the Law " On Prosecutor's Office " from December 21, 1995 № 2709 " The Prosecutor's Office of Kazakhstan - Kazakh President is accountable to a government body, the supreme supervision sharpening and uniform application of laws, decrees of the President of the Republic of Kazakhstan and other regulatory legal acts on the territory of the Republic, legality of the criminal activity, inquiry or investigation, administrative and enforcement proceedings " (paragraph 1 of Art. 1 of the Act). Next, in paragraph 2 of Art. 2 of the Act states that " the prosecutor's office of Kazakhstan operates independently from other government agencies and officials, political parties and other public associations."

2. The participants of the criminal process. The objectives of the criminal process are quick and full disclosure of crimes, which expose and bring to justice those who have committed them, a fair trial and the correct application of the criminal law. Inner form of criminal procedure is a criminal procedure relationship. The external form of the criminal process is the criminal- procedural order. The main forms of criminal procedure - guilty, investigative, mixed, controversial.

Principles of due process: legality, justice only by the court, the judicial protection of the rights and freedoms of man and citizen, respect the honor and dignity of the person, security of person, the protection of the rights and freedoms of citizens in criminal matters, privacy, privacy of correspondence, telephone conversations, postal, telegraph and other communications, and privacy of the home, the inviolability of property, the presumption of innocence, the inadmissibility of the second conviction and prosecution, justice on the basis of equality before the law, the independence of judges, judicial proceedings on the basis of the equality of the parties, a comprehensive, complete and objective investigation, evaluation of the evidence by inner conviction, ensuring the suspect, the accused the right to a defense, exemption from the obligation to testify, the right to qualified legal assistance, the publicity, the language of the criminal proceedings, the freedom appeal proceedings and decisions.

The bodies of the criminal prosecution, refer prosecutor, the investigating bodies. Criminal prosecution is in the public, in privately- public, in private orders.

The criminal procedure involves various bodies and persons: the court, the prosecutor, the investigating authorities, the accused, the suspect, a defender, a witness, expert, etc. They all perform their inherent functions and tasks, as well as in accordance with their status thety have certain rights and obligations.

The participants of the criminal process are all legal and physical persons who have been concerned in the criminal case, which shall have the rights and obligations provided for the CPC.

The law divides the parties to the proceedings to the following groups: 1) the court, and 2) public authorities and officials carrying out the functions of prosecution (prosecutor or investigator), and 3) The actors defending or representing their interests and rights (the suspect, the accused, defender, private prosecutor, civil plaintiff, the defendant, the victim, and so on), and 4) other persons participating in criminal proceedings (witnesses, experts, witnesses, interpreters, experts, court clerk).

The court, the prosecutor, the investigator, the investigator acting in criminal proceedings as representatives of the state whuch act in the criminal justice system are designed to protect the rights of citizens, public order, public and private property, public order against crime in the interests of the state.

Court. The Court, as a judicial body, administers justice in criminal cases. Any criminal case may be considered only by a legitimate, independent, competent and impartial staff of judges. As the bearer of the judiciary the powers of the court are determined by law. Only the court is entitled to: 1) recognize a person guilty of an offense and sentenced it 2) apply compulsory medical measures or compulsory educational measures, and 3) to cancel or modify the decision of the lower court.

Attorney is an official exercising within its competence supervision over the legality of investigative activity, inquiry, investigation and court decisions, as well as criminal prosecution at all stages of the criminal process. The prosecutor is involved in the criminal case by the court, represents the interests of the state by keeping the charges and a state prosecutor. In exercising their powers of attorney process independent and subject only to the law.

Investigator is an officially authorized person who conducts the preliminary investigation of the criminal case within its jurisdiction: investigator of internal affairs, national security investigator and investigator of the financial police. The investigator has the right to initiate criminal proceedings, to make a preliminary investigation on it and do all the investigative actions provided the CPC. Investigator takes all decisions about the direction of the investigation and the investigative proceedings on their own, except when the law provides for the obtaining of consent of the prosecutor or the court decision, and shall be fully responsible for their legal and timely execution. Unlawful interference to the investigator's work incurs criminal liability.

Suspect is a person concerning whom the rules are based and it should be established in the Criminal Procedure Code of RK in connection with his suspicion in commission of crime and it is declared by the investigator, the investigator is brought admits to suspects, either the detention is carried out, or the measure of restraint before charge presentation is applied. In case of detention of the suspect or application of a measure of restraint to it before charge presentation it has to be interrogated not later than twenty four hours from the moment of detention or application of a measure of restraint when ensuring the right to appointment alone and confidentially before the first interrogation with the electee it or the appointed defender. The detained suspect has the right to phone immediately or otherwise in a place of the residence or work about the detention and a contents place. The body of criminal prosecution has no right to hold in position of the suspect: 1) the detainee — over seventy two hours; 2) the person to whom the measure of restraint is applied — over ten days from the moment of the announcement to the suspect of the resolution on election of a measure of restraint.

Accused. A person concerning whom the resolution on attraction is accused or taken out, or a person concerning whom in court criminal case of private charge, and also the person concerning whom the charge protocol is made and approved by the chief of body of inquiry is brought admits accused. Accused in the matter of which the main judicial proceedings are appointed, is called as the defendant; accused concerning which the conviction is pronounced — condemned; accused concerning which the verdict of not guilty is pronounced — justified.

Defender - a person who is carrying out protection of the rights and interests of suspects and accused and rendering to them a legal aid in an order established by the law. As defenders lawyers, the spouse (spouse), close relatives or lawful representatives accused, representatives of labor unions and other public associations for members of these associations are allowed. Foreign lawyers are allowed to participate in business in quality of defenders if it is provided by the international treaty of RK with the respective state on a mutual basis, in an order determined by the legislation. A defender is allowed to participate in business from the moment of presentation of charge or recognition of the person according to RK Criminal Procedure Code the suspect. A lawyer has no right to refuse the assumed protection of the suspect or accused.

Victim. A person concerning whom there is a base to believe admits to victims criminal trial that to it directly the crime did moral, physical or property harm.

As the witness for evidence any person to whom any circumstances are important for business can be known and interrogated. Subjects to interrogation as the witness: 1) the judge — about circumstances of criminal case which became known in connection with participation in production on criminal case, and also during discussion in the consultative room about the questions which have arisen at adjudication; 2) the defender of the suspect accused, and equally the representative of the victim, the civil claimant and the civil respondent - about circumstances which to it became known in connection with performance of the duties on criminal case; 3) the priest — about the circumstances, known to it from a confession; 4) aperson who is at the juvenile age or mental or physical defects is incapable to perceive correctly the circumstances important for business and to give about them evidences.

As the expert the person not interested in business possessing special scientific knowledge can be caused.

Expert. As the expert for participation in investigative and judicial actions the person not interested in business possessing special knowledge, necessary for rendering assistance in collecting, research and an assessment of proofs, and also in application of technical means can be caused. Experts are also the teacher participating in investigative and other procedural actions with participation of the minor, and equally the doctor participating in investigative and other procedural actions, except for cases of appointment as his expert.

Translator. As the translator the person not interested in business knowing language which knowledge is necessary for transfer, and attracted for participation in investigative and judicial actions in cases when the suspect accused, the defendant, their defenders or the victim, the civil claimant, the civil respondent or their representatives, and also witnesses and other participants of process don't know language in which production is conducted, on business is called, and is equal for the translation of written documents.

The understood. The person attracted with body of criminal prosecution for the certificate of the fact of production of investigative action, its course and results in the cases provided by the Criminal Procedure Code of RK is understood. The full age citizens can be understood only uninterested in business and independent of bodies of criminal prosecution, capable it is full and correct to perceive actions occurring at their presence. Not less than two understood participate in production of investigative actions.

Court clerk. The court clerk is the civil servant not interested in criminal case who conducts the court minutes.

Bailiff. The bailiff is the official who is carrying out tasks assigned to it the law of providing an established order of activity of the courts and execution of judgments. The bailiff provides control of execution of the punishments which haven't been connected with imprisonment, renders assistance to judicial performers in compulsory execution of executive documents, keeps order in a hall during judicial proceedings, carries out orders of the chairman and carries out protection of judges, witnesses and other participants of process in vessels, protects them from foreign influence, promotes carrying out by court of procedural actions, carries out the drive of the persons evading from an appearance in court, carries out other powers assigned to it by the law.

Sources of proofs. Proofs — it is lawfully obtained actual data on the basis of which in the order defined by the law the investigator, the investigator, the prosecutor, court establish existence or lack of the act forbidden by the criminal law, commission or non-execution of this act accused, guilt or innocence accused, and also other circumstances important for the correct permission of business.

Types of sources of proofs in criminal trial. The criminal procedure law divides sources of proofs into the following types: 1) indications of the suspect accused; indications of the victim, witness; 2) expert opinion; 3) material evidences; 4) protocols of procedural actions; 5) documents. Procedural documents can be divided into four groups: decisions which are made by competent authorities and are connected with the process direction; the documents proceeding from other participants of process and generating the rights and obligations of government bodies; the documents fixing results of separate procedural actions; the documents having technical and information character.

Judicial proofs are classifyed into the following types: on a way of education; on character of a conclusion; on a receiving source. On a way of formation of the proof subdivide on initial and derivative. Proofs primary sources are initial. Derivatives are proofs which reproduce contents of other proof. They are the proofs of " the second hand".

The proof is devided by the character of a conclusion to direct and indirect. The direct proofs are those which, even being taken separately, give the chance to draw only one certain conclusion on the required fact.

Indirect demonstrations — proofs which are taken separately, giving the grounds not for one certain, and for several presumable conclusions, several versions of rather required fact.

Proofs on a source are divided on: personal and material depending on a source of obtaining data (people or things). To personal proofs carry: explanations of the parties and third parties; indications of witnesses; expert opinions; to the material — different thing.

Measures of procedural coercion — are the means of compulsory character applied by authorized bodies to the suspect provided by the criminal procedure law, accused and to other participants of criminal trial.

Qualification of measures of procedural coercion: detention of the suspect; measures of restraint; other measures of procedural coercion.

Stages of criminal trial: initiation of legal proceedings; preliminary investigation; giving to court; preliminary hearing of business; main judicial proceedings; appeal production; execution judgments; productions as supervision; proceeding renewal in view of again opened circumstances.

3. Main concepts of a civil procedural law. The civil procedural legislation of RK regulates the public relations arising at departure by courts of justice by consideration and permission of claim and other affairs, carried to their competence, by means of imperative диспозитивного a method.

The civil procedural law consists of 2 parts: The general and Special.

Rules of the General part of civil process contain the general rules of legal proceedings. These rules matter in definition of an order of all civil legal proceedings. Them treat: civil procedural legislation; tasks and principles of civil legal proceedings; jurisdiction of civil cases; jurisdiction of civil cases; structure of court and branches (rejections); the persons participating in business; representation in court; proofs and proof; court costs; coercive measures; procedural terms; judicial notices and calls; pre-judicial settlement of receivership proceeding.

Rules of Special part matter for a separate stage of civil process. These norms regulate: production in court of the first instance; production on revision of judicial resolutions; the rules regulating an order of restoration of lost production and legal proceedings with participation of subjects of the foreign right; rules about performance of judicial acts.

Operating CPC RK provides three types of civil legal proceedings: the claim; the special claim; the special mandative.

Objects of legal regulation the principles of a civil procedural law are subdivided on organizational and functional and. Civil procedural legal relations are subdivided on main, additional, office and auxiliary.

Process stageis the part (stage) of legal proceedings uniting a certain circle of procedural actions, directed on achievement of the independent (final) purpose. The main thing for definition of an independent stage of process is its completeness. Civil process shares on the following stages: production in court of the first instance: initiation of proceedings, preparation I put to judicial proceedings, consideration and permission of business in a court session — the judicial proceedings which is coming to the end with removal and announcement of the decision (the correspondence decision) or final definition; production in court of appeal instance (revision of the judicial acts which haven't entered validity and secondary consideration of the case on a being higher instance as a result of realization of the right to the appeal and protest; production in court of cassation instance (check of legality and validity of the judicial acts which haven't entered validity, as a result of realization of the right to the cassation appeal and protest; production as judicial supervision (revision of the judicial acts which have entered validity, specially created judicial supervisory authorities); production on revision of the judicial acts which have entered validity on again opened circumstances; executive production (execution involuntarily judicial and other acts bodies of executive production).

The following three preconditions are necessary for emergence of civil procedural legal relations: norms of a civil procedural law; subjectivity right of participants of procedural legal relationship; legal structure.

The content of civil procedural legal relationship is made by the subjective rights and procedural duties of subjects of civil procedural legal relationship.

Subject of structure of civil procedural legal relationship make: 1) the main legal relationship — the relations arising between court and the claimant; court and respondent; court and the applicant for special production; court and the person initiating proceedings in protection of the rights and legitimate interests of other persons according to articles 55 and 56 CPC RK;

2) additional legal relations — the relations of four types: a) court — the third party declaring independent requirements of a subject of dispute on the right; b) court — the third party which isn't declaring independent requirements; c) court is the prosecutor who has entered begun business; d) court is a government body or the local government entering process for the purpose of making the conclusion on business;

3) office and auxiliary legal relations — the relations where the participants, on the one hand, the court acts, the witnessand onanother, the expert, the expert, the translator, etc.

Stages of civil process. At the heart of criterion on stages of civil process the relations of the following types are usually allocated: court of the first instance — participants of process; court of appeal instance — participants of process; court of cassation instance — participants of process; court of supervising instance — participants of process; inferior court — superior courts.

The subject of a civil procedural law is an abstractconcept.

The subject of civil procedural legal relationship is a real concept. Subjects of civil procedural legal relations are divided into four groups:

1) persons who are carrying out justice — courts (the first, appeal, cassation and supervising instance; judges, officials of court (the chairman in a court session, the presiding judge, the chairman of the relevant board of court, the judicial performer, the bailiff, the court clerk, the court secretary);

2) persons participating in business and declaring independent requirements of a subject of dispute; the third parties who aren't declaring independent requirements of a subject of dispute — the prosecutor; government bodies, local governments, the organizations or the certain citizens entering process on the bases, provided by articles 56 and 57 CPC RK;

3) applicants and other interested persons on the affairs considered by court as special production (CPC RK Art. 289); 4) judicial representatives — persons promoting implementation of justice.

The concept of the party of process is predetermined by concept of subjects of material legal relations. Parties — are the valid or estimated subjects of material legal relations. Parties request the signs, the inherent persons participating in business, namely: have legal interest in outcome of the case; act in process on its own behalf and in protection of own interests; possess the right to commission of administrative actions, fall under influence of validity of the judgment and (or) definition about determination of proceedings; have the volume of procedural laws established by the law and duties.

Among the called signs existence of legal interest is essential. Specifics of legal interest of the parties as participants of disputable material legal relationship that the parties have material and legal and procedural interest in outcome of the case. Material and legal interest consists in receiving or preservation of that benefit concerning which the court will pass the decision.

It is necessary to understand that procedural result of consideration and permission of the business which approach expects and achieves the participant of legal proceedings as procedural interest is an entering process. For both parties procedural interest is connected with receiving from court of the decision to which dispute between the parties will be allowed.

Legal interests of the parties are mutually exclusive and opposite as the parties are in a condition of dispute on a substantive law and a legitimate interest.

Dispute right (disputable material legal relationship), which subjects also is parties to the case is a subject of judicial proceedings. Court, resolving dispute on the right between the parties, passes the judgment or process comes to the end with definition removal about determination of proceedings according to will of the parties (in connection with acceptance of refusal of the claimant from the claim or with the approval of the settlement agreement). Thus, by pronouncement of judicial acts the behavior (the subjective rights and duties) the former subjects of civil dispute is defined. Therefore only the parties consequences of the judgment which has entered validity are extended fully.

The parties are the persons, concerned the subjective rights and whose duties are carried out judicial activity, therefore the law assignsthe burden of court costs (except for cases of release from execution of such expenses). The aforesaid allows to allocate the following specific signs characterizing the parties (the claimant and the respondent) in process: existence of opposite material and legal and procedural interests; distribution in full consequences of the judgment which has entered validity; execution of court costs on business.

Dispute on the right between the parties a subject of judicial proceedings are not only connected with initiation of affairs of claim production. Existence of dispute on the right is one of essential signs and special claim production. In our opinion, the existing civil procedural legislation of RK suggests that subjects, whose dispute on the right is allowed as special claim production. It is possible to call the parties in process. Parties are the main persons not only for claim, but also for special claim productions.

According to CPC RK Art. 48 parties in civil process are claimant and the respondent. Claimants are citizens and the legal entities who have made the claim in the interests or in which interests the claim (p.1 CPC RK Art. 48) is made. The claimant — is a person from the parties in process, concerning the rights and which legitimate interests were resolved by court on the right, i.e. assumed (or valid) the subject of the disputable right and a legitimate interest.

4. Control and responsibility in a procedural law. The importance of the issues is resolved during legal process, demands every possible ensuring the rights of persons participating in it, interests of the state and society that is impossible without strict, steady observance, execution of legal instructions by all participants of process. The system of procedural guarantees, i.e. the special legal means providing compliance to the law of all procedural actions, and equally legality, Validity and justice of made decisions is directed on the solution of these tasks.

Procedural guarantees in the unity have to provide the protection of the rights and legitimate interests of certain participants about (weight, and interests of the state and society as a whole. Thus many guarantees solve that and other tasks (the constitutional fixing of the principles of equality of all before the law and court, independence of judges and their submission only to the law, justice implementation only court, etc.). Others are directed, first of all, to protection of interests of accused (defendant) — the right to protection, an innocence presumption and so forth. Important and that procedural legal relationship have bilateral character and to the right of one party always resists a duty another. Therefore, fixing in the law procedural laws of citizens, the state assumes a duty to provide their real implementation. The role of procedural control of activity of the law enforcement agencies allocated with powers of authority is especially important here.

Procedural control. There are some types of procedural control. From their number the most essential value has a judicial supervision. It is carried out in several forms:

1. The court considers on the first instance cases (in all four types of legal process) and makes on them final decisions. Legality and validity of earlier make procedural decisions (for example, resolutions of the investigator and the indictment on criminal cases, the protocol on an offense in administrative production, etc.) are thus checked. As a result it can be made not only the decision on a being (the verdict of not guilty, etc.) but also for private definition about legality violation is taken out;

2. According to complaints of various participants of process and on protests of the prosecutor The court checks affairs (criminal, civil, administrative) and at detection of violations also can cancel an illegal decision and take out private definition (resolution). In particular it is a question of revision of affairs in a cassation supervising order, of consideration of complaints to violation of terms of the contents accused under guards, on the decision which was made " and non-judicial bodies about imposing of an administrative penalty and so forth. There is a possibility of the appeal the citizen in court of all illegal actions and decisions of government bodies of officials.