Human Rights in the Stage of PReliminary Investigation and Inquest
A review of supervisory activities and law-enforcement practices including issues regarding complaints of illegal actions by employees of law-enforcement agencies shows that until now, violations of the constitutional rights of citizens are widespread, such as: illegal detention, unwarrantable entry and search of homes, and unlawful methods of investigation such as the use of violence and other degrading treatments.
As was mentioned earlier, the existing violations are the result of a poor system for the assessment of the activities of law-enforcement agencies.
Other important factors are the issue of selection and placement of personnel and the insufficient logistical support of criminal prosecution agencies.
Experience shows that often, violation of the constitutional rights of citizens is permitted due to the inadequate fulfillment of job responsibilities, a low level of professional training of officers of criminal investigation, and sometimes their lack of elementary knowledge of criminal procedural legislation and international legislation ratified by Kazakhstan.
These disadvantages lead to so-called “procedural oversimplification”: collection of evidence for criminal cases is not handled properly and investigation is surrounded by red tape, which results in illegal procedural decisions and as a result, violation of the rights of citizens involved in a criminal case.
It is necessary to develop and implement an effective system of professional development of law-enforcement employees, the priorities of which will be professionalism, compliance with law, and a feeling of obligation and responsibility to citizens and the government.
The supervision of the public prosecutor over the of observance of the constitutional rights of an individual begins at the moment when a citizen and agencies of criminal prosecution enter into a relationship, i.e. from the moment when these agencies receive information regarding crime that is intended, is being committed, or has been committed, or the moment when a charge by an individual has been filed.
Experience shows that violations of citizens’ rights in the sphere of criminal investigation are mainly related to the infringement of constitutionally provided guaranties such as the inviolability of private life, privacy of correspondence, telephone conversations, telegraphic communications, and post, as well as the right to inviolability of the home.
In this regard, prosecution agencies act as the only authority, which, in accordance with Article 83 of the Constitution, ensures the supervision of the observance of the rights and freedoms of citizens by law-enforcement agencies during the course of criminal investigation.
Due to the uniqueness of criminal investigation activity, existing methods for monitoring the observance of human and civil rights are not always applicable, and governmental control is limited by departmental control. The issue of protection of citizens’ rights is also problematic due to the lack of opportunities and the right to access to the records of investigation departments.
An effective way to suppress and prevent violations of the right to personal freedom is regular inspections carried out by public prosecutors and the Human Rights Commission of the legitimacy of detention of individuals and their stay in temporary jails or official buildings. Such inspections are carried out unexpectedly, including during the night, on holidays, and on weekends.
As a result, in recent years, instances of the illegal detention of citizens on the basis of Article 132 of CCP RK have been reduced in the country. On the other hand, more instances have been uncovered of the illegal arrest of individuals and their detainment in official buildings, including offices, basements, and gymnasiums.
In 2008, public prosecutors have released 850 individuals who were illegally arrested and detained in official buildings of the criminal investigation authorities. 44 criminal cases were filed with regard to instances of violation of the constitutional rights of citizens, and 24 of them were brought to suit.
As a result of 39,255 inspections done during the last period, 1,317 individuals were released from temporary jails due to the absence of reasons for application of such restraint, 31 were released due to the unconfirmed suspicion of committing a crime, and 17 were released due to the violation of provisions of the Code of Criminal Procedure during the course of arrest.
The statistics regarding crime detection (detection of the crimes stipulated by Article 347-1 of the criminal Code of RK) prove that there is an urgent need to implement the recommendations of the UN Committee against Torture in legislation and law-enforcement practice.
Presently, the majority of the recommendations of the Committee are not yet implemented:
- There is no efficient mechanism for the swift, impartial, and complete investigation of claims or complaints of torture and cruel treatment;
- In practice, the complete observance of the principle of inadmissibility of evidence obtained by application of torture and cruel treatment is not guaranteed;
- There is no independent inspection of places of preliminary imprisonment and no judicial control of the duration and conditions of preliminary imprisonment;
- Recommendations of the UN Committee against Torture are not publicized.
In whole, the review of the situation in the field of preliminary investigation and inquest reveals that there is a need for further improvement of legislation and law-enforcement practices with the objective of the enhancement of security of the rights and freedoms of an individual and citizen who came to be involved in criminal legal proceedings.
It is necessary to specify in detail the actions of investigators and operating officers during the course of the detention of individuals suspected of a crime, their delivery to the agencies of internal affairs (National Security Committee, financial police, etc.), imprisonment in a temporary jail, and initial questioning. It is necessary to establish stricter requirements and intensify the responsibility of individuals carrying on a criminal lawsuit regarding timely explanation to the suspected (accused) of his procedural rights including the right to the receipt of qualified legal assistance and the information of relatives of the fact of detention (arrest).
In order to prevent abuse and exceeding the bounds of authority during the course of preliminary investigation and inquest, it is necessary to legislatively establish the right of the arrested, suspected, or accused individual to an independent medical examination.
It is necessary to take all required procedural actions for the effective protection of the rights of victims and witnesses of crimes.
The survey conducted by experts from the Association of Sociologists of Kazakhstan revealed that 38.4% of respondents negatively evaluated the governmental mechanism for the protection of the rights of crime victims and 18.0% of respondents found it difficult to answer the question: “How do you evaluate the situation in the sphere of protection of the rights of crime victims?.” The given results of the sociological survey allow the conclusion that there is a need for improvement of the mechanism for protection not only of crime victims, but also of witnesses.
It is necessary to elaborate a governmental program for the implementation of the Law of RK “On the Governmental Protection of Individuals Involved in Criminal Procedure” which would stipulate financial and organizational provisions and effective mechanisms for their implementation.
It is necessary to intensify the liability of officials for illegal detention of individuals outside temporary jails, in offices and other inadequate facilities. Temporary jails should be handed over to the jurisdiction of the Ministry of Justice of RK.
In an effort to secure the human rights guaranteed by the Constitution of the Republic of Kazakhstan and international legislation, we recommend that the Government of the Republic of Kazakhstan implement the following measures during the period of 2009-2012:
- It is necessary to clearly define in criminal procedure legislation the concepts of “arrest of suspect” and “the moment of actual arrest,” because the three-hour period of arrest stipulated by Article 134 of CCP RK starts from the moment of actual arrest, during which period the protocol must be filed that indicates the reasons and motives for arrest, place and time of arrest (indicating exact hour and minute), results of personal search, and the time of the drawing up of the protocol.
- Criminal procedure legislation of the country should be supplemented with provisions obliging the employee of a law-enforcement agency who made the actual arrest of the individual to inform him/her without delay, at the minimum, regarding the following:
- Reason for arrest;
- Classification of the crime of which he /she is suspected or accused;
- The right to a lawyer (defense) of choice including the right to free legal assistance and a confidential meeting with the lawyer before the first questioning;
- The right to keep silence (the right not to testify against oneself);
- The right to judicial appeal of arrest;
- The right to the immediate information of relatives about the arrest.
It is necessary to specify in criminal procedure legislation that failure to inform the individual of the above-mentioned rights is a violation of the procedural rights of the suspected or accused individual that can afterwards lead to the termination of prosecution of the individual.