The place of the investigating judge in the judicial system of Kazakhstan, his status, procedural powers and the procedure for their implementation
One of the directions for the implementation of the expansion of the limits of judicial control in pre–trial proceedings provided for in the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 is the introduction of a new participant in the criminal process - the investigating judge. This should be combined with the designation of the place of the investigating judge in the judicial system of Kazakhstan, his status, procedural powers and the procedure for their implementation, the limit of research and evaluation of the grounds for his procedural decision and other relevant issues. The Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 No. 132-II "On the judicial system and the status of judges of the Republic of Kazakhstan", fixing the provision on the possibility of creating specialized courts with the status of a district or regional court, equal status of judges of all levels of the judicial system, does not separate investigative courts into a separate structure, and, defining the powers of courts, It does not specify which court judge performs the functions of judicial control during the preliminary investigation of the case.
The place of the investigating judge in the judicial system of Kazakhstan, his status, procedural powers and the procedure for their implementation
Article 5 of the aforementioned law states that the procedure for the operation of courts and the status of judges, in addition to this law and the Constitution, are determined by other legislative acts. With regard to the investigating judge, such a legislative act is the Criminal Procedure Code of the Republic of Kazakhstan, since it regulates the procedure for criminal proceedings and defines the powers of the bodies and persons who carry it out. A careful analysis of the norms of the CPC allows us to conclude that the procedural and legal status of the investigating judge is defined in paragraph 40) of Article 7 as follows: "investigating judge" is a judge of a district and equivalent court exercising the powers provided for in this Code during pre-trial proceedings." From this definition, it can be seen that the investigating judge is a member of the district courts. These include district (city) courts dealing with criminal cases in the first instance, specialized interdistrict criminal courts equivalent to them, specialized interdistrict juvenile courts, specialized interdistrict military criminal courts and garrison courts. As a judge of a district court and a court equivalent to it receives the status of an investigating judge, it is indicated in the first part of article 56 of the draft CPC: "The investigating judge (judges) is elected by the assembly of judges of the court of first instance from among the judges of this court, and if the number of judges is less than five, he is appointed by the chairman of this court.
If it is necessary to replace the investigating judge, he may be re-elected or reassigned." For comparison, in the recently adopted CPC of Ukraine, the status of an investigative judge is defined as follows: "an investigative judge is a judge of the court of first instance, whose powers include exercising judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings in accordance with the procedure provided for in this Code, and in the case provided for in Article 247 of this Code, the chairman or, according to his definition, another judge of the Court of Appeal of the Autonomous Republic of Crimea, the Court of Appeal of the region, the cities of Kiev and Sevastopol. The investigating judge (investigative judges) in the court of first instance is elected by the assembly of judges from among the judges of this court." From this definition, the following characteristics of an investigative judge are clearly discernible: a) an investigative judge is a judge of the court of first instance, he is elected at a general meeting of judges from among the judges of this court (for example, in Germany, an investigative judge is appointed from among the judges of this court for 1 year, in France – for 3 years); the powers of this investigative judge of the court include the exercise, in accordance with the procedure provided for by the CPC, judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings, b) an investigative judge is the chairman or, by his order, another judge of the regional court of appeal and an equivalent court appointed to consider petitions for secret investigative (search) actions. Since many district courts are small and consist of 2-3 judges, it is impracticable for an investigative judge to be elected by an assembly of judges. When preparing the draft of the new version of the CPC, the Supreme Court proposed to introduce a rule that would define the procedural and legal status of an investigating judge, along the following lines: "An investigating judge is a judge of a district and equivalent court who, on behalf of the chairman of the court, exercises judicial control during pre-trial proceedings over the observance of human rights and freedoms, legally protected interests of organizations". However, this proposal was not supported by the working group.
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