Academic journal article Asian Social Science

The Issues of Legal Status of a Witness under the Legislation of the Republic of Kazakhstan

Academic journal article Asian Social Science

The Issues of Legal Status of a Witness under the Legislation of the Republic of Kazakhstan

Article excerpt


This article discusses the preliminary investigation problems related to the presence of witnesses in the course of the investigation. At present, the institution of witnesses exists only in the legal system of post-Soviet states and in foreign countries, in order to secure the progress and results of investigative activities the technical means are used for a long time. Historical analysis of the emergence of witnesses in criminal proceedings suggests that the institution of the witnesses has existed since the Middle Ages, to this date, it is not a special significance, as in the past century, and is a relic of an outdated legal system. In writing this report, the author pursued the following objectives: to examine and analyze contemporary issues in the post-Soviet institution of witnesses; based on the experience of law enforcement agencies of foreign countries, as well as several works of scientists justify the possibility of replacing of witnesses in the investigation with the use of technical fixation means; to make an analysis of the rules of criminal legislation of the Republic of Kazakhstan regulating the legal status of a witness, and to formulate suggestions for the improvement of these rules. As a result of the research, the author has come to the following conclusions: in the practice of criminal prosecution bodies of the Republic of Kazakhstan and a number of neighboring states there have been accumulated a lot of problems associated with the presence of witnesses in the conduct of investigative activities; in order to eliminate these problems we need to make a number of amendments and additions to the Criminal Procedure Code: Article 86 of the Criminal Procedure Code of the Republic of Kazakhstan is necessary to specify the time of legal status gaining by a witness, as well as to differentiate the responsibility for his/her failure within procedural obligations; in order to prevent violations of the constitutional rights of citizens, it is necessary to provide a legislative involvement of witnesses to participate in the investigation only with their consent; given the experience of foreign countries, in future, Kazakhstan legislator needs to gradually withdraw from the witnesses' participation in the conduct of investigative actions, replacing it with the use of technical evidence fixation means.

Keywords: a preliminary investigation, the investigative actions, a witness, a legal status of the witness, the technical fixation means

1. Introduction

For a long time the institution of witnesses in criminal procedural law is the subject of academic discussions in Kazakhstan and other post-Soviet states. The relevance of the numerous studies on the subject is based on the fact that at all times in a criminal procedure, there were many problems associated with introducing the witnesses to the production of the investigative actions.

To date, pre-existing problems of the institution of witnesses are not solved in full, and therefore the study conducted is fairly important. Among scientists and practitioners of law enforcement agencies, the need for the witnesses in modern criminal trial is discussed quite often and everywhere. Participation of witnesses in investigative actions lost its relevance existed in the last century. Currently, in most countries of the world, the technical means instead of witnesses' participation are used to secure the progress and results of investigative actions. The using of technical means greatly simplifies and speeds up the detection and seizure of evidence of the conducted crime. In addition, the using of these means, as opposed to the participation of witnesses, mostly ensures compliance with the rules of criminal procedure law by either an investigator or an inquirer in the production of investigative action. The above facts indicate the need for the abolition of the institution of witnesses, and the application of technical fixation means in the production of all investigative actions under the criminal procedural legislation of the Republic of Kazakhstan. …

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