Ensuring the safety of persons involved in the criminal case of the suspect, victim, witness, accused, as well as their family members and close relatives
The body conducting the criminal proceedings is obliged to take security measures for the suspect, victim, witness, accused, other persons participating in the criminal proceedings, as well as their family members and close relatives, if there is a real threat of violence or other act prohibited by criminal law against them in connection with the criminal proceedings (article 99 CPC). It should be noted that the preliminary investigation authorities, in accordance with chapter 12 of the CPC, took appropriate measures to ensure the safety of the persons involved in the case. As a procedural security measure for witnesses, access to information about the protected person was mainly restricted, consisting in removing information about the person's personal data from the materials of the criminal case and storing them separately from the main proceedings, and using a pseudonym by that person.
Ensuring the safety of persons involved in the criminal case of the suspect, victim, witness, accused, as well as their family members and close relatives
According to the criminal case filed by the Zhambyl District Court of the Zhambyl region accusing A. of committing a crime under Parts 2-1 of Article 259 of the Criminal Code, a witness who voluntarily delivered a narcotic drug purchased from the accused A. received a statement during the preliminary investigation requesting that a security measure be taken against him, as he fears for his safety. life and the lives of their relatives. The investigator, guided by Article 4 of the Law "On State Protection of Persons Participating in Criminal Proceedings" and Articles 99, 100 of the CPC, issued a decision to restrict access to information about the witness by changing his personal data and other information that could help establish his identity in procedural and other documents, all pre-investigation and other actions involving to conduct the protected person with the adoption of measures to ensure his safety. Nevertheless, violations of the security measures are allowed. For example, when the specialized interdistrict criminal court of the Pavlodar region considered the case against Z., accused of committing crimes under Part 2 of Article 259, paragraph "b" of Part 3 of Article 259, paragraph "b" of Part 3 of Article 259 of the Criminal Code, a security measure was applied against the buyer of narcotic drugs by the preliminary investigation body. in the form of restricting access to information about the protected person by assigning him the pseudonym P. Despite this measure, the video recording of operational search activities contains an image of P. Whereas, according to article 100 of the CPC, procedural actions involving the protected person must be carried out in conditions that exclude his recognition. In accordance with articles 53, 205 of the CPC, the data of the inquiry and preliminary investigation are not subject to disclosure.
The procedure for maintaining the confidentiality of the specified data is defined by Part 2 of Article 205 of the CPC, according to which the investigator warns the defender, witnesses, the victim and other persons present during the investigative actions about the inadmissibility of disclosing the information available in the case, about which a subscription with a warning about responsibility is taken from these persons. When a court examines secret or other confidential information in a closed court session in accordance with articles 53, 100 of the Code of Criminal Procedure, the current criminal procedure legislation does not provide for the withdrawal of subscriptions from all participants in a closed trial (this refers to the issue of non-disclosure of data that became known during the court session concerning operational investigative activities, the identity of witnesses, etc.). It should be noted that in practice, judges select such subscriptions in some cases. In this regard, the judges of the Kostanay Regional Court propose to amend articles 203 and 205 of the CPC accordingly.In addition, the judges of this regional court propose to amend article 99 of the CPC, eliminating the real threat of violence or other acts prohibited by criminal law as the basis for applying security measures to persons involved in criminal proceedings. In practice, the defense often raises the issue of lifting security measures due to the fact that investigators in their decisions do not always indicate the existence of a real threat to the life and health of the protected persons. Since the use of a security measure is the right of a person participating in a criminal trial, which these persons have the right to use even without a real threat of violence against them (for example, in connection with their position, etc.). The rights of persons participating in the process are not always respected. For example, by the verdict of the district court No. 2 of the Almaty district of Astana dated August 10, 2011, A. was found guilty and convicted under Part 1-1 of Article 259 of the Criminal Code on the basis of Article 60 of the Criminal Code to five years in prison without confiscation of property and serving his sentence in a high-security penal colony. During the consideration of the case, it was established that during the operational search activities during the detention of the defendant and the discovery of heroin, students of the Astana Trade and Economic College were invited as witnesses.
Subsequently, the said citizens were questioned as witnesses by the investigator of the investigation department of the Almaty police Department, and confrontations were conducted with the accused A. The investigator chose Russian as the language of legal proceedings in this case. However, at the court of appeal hearing, it was established that the above-mentioned persons do not speak Russian well, and Kazakh is their native language. In this connection, they were interrogated through an interpreter, where they indicated that the statements were given to the investigator in Kazakh, and he wrote them down in Russian. A confrontation was also conducted in Russian between these witnesses and A. Thus, the rights of witnesses provided for in Article 82 of the CPC to testify in their native language and to use the free assistance of an interpreter by investigator S. were violated. In this regard, the Appellate Judicial Board for criminal cases of the Astana City Court has issued a private decision to the head of the Department of Internal Affairs of Astana.
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