Once Again About Whether an AREST Should Be Sanctioned by Court or Prosecutor? (opinion of an independent lawyer) (Zh.S.Yelyubayev)

Zh.S.Yelyubayev

 Ж.С.Елюбаев

Once Again About Whether an AREST Should Be Sanctioned
by Court or Prosecutor?
(opinion of an independent lawyer)
 

The discussion on this quite acute topic has been a permanent theme on the pages of mass media already for several months. This issue has been repeatedly debated in various forums of state agencies and public associations; prosecutors, judges and investigation organs have crossed their swords around this problem. The Republic of Kazakhstan Parliament deputies from time to time raise the same issue touchy for the public. And finally, there exists a draft law on entering changes and additions in the law of criminal procedure stipulating transfer of powers to sanction arrests from prosecutors to courts. Other alternative solutions of this legal dispute are suggested.

How to act under the situation? Should Kazakhstan again go its own special way and invent its own «bicycle» in the sphere of criminal procedure or should it address the general rules and procedures generally accepted by the world community? Should we be afraid of «threats» coming from investigation and prosecution workers that transfer of such competence from prosecutors to courts will entail rise in criminality, abuse on the part of judges, red tape in the sphere of investigation and inquest, etc.? Should we take into consideration statements of the Kazakhstani «Zheglovs and Sharapovs» that as a result of transfer of powers on sanctioning arrests by courts they will just lose a possibility to timely react to crimes committed?

Answering these and other questions, I as an external lawyer who has dedicated many years to criminal procedure issues and who not in theory but in practice knows judicial, prosecution and inquest work, would like to share my thoughts with regard to this matter topical both for the country and public at large.

To my mind, all disputing parties should first of all address the generally recognized international practice and international legal acts that directly or indirectly resolve these issues. We need not invent a Kazakhstani procedural «bicycle».

First of all, let us recall one the oldest institutions in the theory of law, it is called «habeas corpus act» (meaning «bring so-and-so to the judge»). If we class ourselves among states striving to build a genuine democratic society but not its prototype of a Kazakhstani kind, then we should take exactly this rule for the basis. This is a philosophical foundation for the development of this theme, a basis for resolution of the protracted dispute in the country. In the USA, for example, whatever our attitude to the country, 230 years ago this rule in the Constitution was subsumed under such norms that cannot be either corrected or changed under any circumstances, in fact it is an untouchable rule.

Its gist consists in that an apprehended citizen whose freedom is forcefully restricted should be immediately brought to a judge to be able to state his claims and objections. It is an institution of excluding an error generating a mass of negative, sometimes heavy consequences for an arrested person that later are extremely difficult to remedy.

If we refer to provisions of the European Convention of Protection of Human Rights and Basic Freedoms, we shall see that Article 5(3) guarantees to each detained or arrested person the right to immediate bringing him to a judge for confirmation of justification of restriction of freedom or for immediate release, if the court recognizes that there are no grounds for arrest or detention.

 In another international legal document, particularly, in Articles 9(1) and 9(3) of the International Pact on Civil and Political Rights» the basic provisions are enshrined that «every person shall be entitled to freedom and personal inviolability» and «every arrested or detained person on a criminal charge shall with the utmost promptitude be brought to a judge or another official entitled to exercise judicial power, and to court proceedings within a reasonable term, or to release».

What has the current Constitution of the Republic of Kazakhstan provided for with regard to this issue? For example, Article 16.1 of the Constitution guarantees to each person the right to personal freedom. Item 2 of the same Article contains a provision stipulating that arrest and detention shall only be allowed in cases stipulated by law and only if sanctioned by:

The Court; OR

The Prosecutor, with the right of the arrested person to judicial appeal.

Thus, also the Basic Law of our country has provisions similar to the abovementioned international legal acts. It should be noted that proceeding from the meaning and contents of Article 16 of the Republic of Kazakhstan Constitution the priority in this issue is given to court, since court is mentioned as the first body competent in providing a sanction for a citizen’s arrest or detention. The prosecutor is only named as the second such body, and its decision on the arrest of a person may be appealed, again in the court.

Due to this, and based on the positive international practice and desire of the state to build and strengthen democratic institutions of power it is necessary to follow the road of unconditional transfer of competence to sanction arrests to courts. Prosecutors have fulfilled their role in the transition period from the Soviet system of state regulation of this process to democratic schemes of resolving this issue. The Prosecutor’s Office as a state law enforcement agency exercising supervision over the legality should, to my mind, be interested in transferring such powers to courts. It has completed its mission and now by its actions it should promote further democratization of society and state institutions.

To resolve this issue through entering changes and additions in the RK Code of Criminal Procedure there is no need to change the Constitution of the country, as Article 16 of the Fundamental Law provides for courts the right to sanction arrests.

It should be noted that the court procedure in contrast to that of the prosecutor’s office with all its merits and shortcomings is the most open and transparent for society and namely that is why it is safer. The judge records everything, and in the process, besides the person brought for arrest, actively participate also a prosecutor as a body for overseeing the legality, and a lawyer representing the interests of the detained, and a representative of the preliminary enquiry body should publicly justify its decision on the necessity to apply such type of preclusion measures as arrest. And finally the decision of the judge on the use of arrest may within the terms established by law be appealed against by the process parties with a higher court.

At the same time, it should be taken into consideration that the investigator is not deprived of the right to choose a preclusion measure in the form of arrest. It is him, and only him, who as an independent participant in the proceedings takes a decision about the application of such preclusion measure as arrest to this or that person detained under suspicion of committing a crime, and this decision of his should be sanctioned by the court.

Why are investigators against the idea of going to court to obtain the sanction, why do they defend the position of leaving this competence with the prosecutor? Probably, it is easier to get such sanction from a prosecutor. And if so, then namely such cloakroom provision of sanction by a prosecutor presents a threat to human rights and freedoms. I do not want here to say that prosecutors universally violate the law; on the contrary, I am sure that in the overwhelming majority of cases they soundly give sanctions for arrests and have a good practice thereof. But since the bodies of preliminary investigation object to transfer of this competence to courts, one may assume that it is still easier to obtain a sanction for arrest from a prosecutor. Or, on the other hand, investigators simply express their professional solidarity with prosecutors, since, as the practice shows, in the sphere of criminal process they more and closer interact with each other.

Taking the position on the necessity to transfer competence on giving sanctions for arrest to courts, I do not want at all to say that judges cannot make mistakes or abuse their position. I think there will be both mistakes and abuses and manifestations of corruption. Nonetheless, the activities of a court (judge) are more public, the decision on giving sanction for arrest is taken not in the corridors or as is made now in the prosecutor’s office with closed doors, but on the basis of reviewing submitted materials, hearing to the grounds of the investigator who selected namely this type of preclusion measure, the objections from the person apprehended and his lawyer, and the prosecutor’s opinion. Therefore, namely the court, a just court can take an objective and lawful decision on application or non-application of arrest. Namely in the court there are more chances to prevent illegal detention, illegal arrest and illegal criminal prosecution.

If we refer to the practice of the Russian Federation, where this institution has been in effect since July 2002, it should be noted that already by 1 January 2003 the number of people held in investigatory detention facilities has reduced by 20%. This trend is observed now too. Such situation only can be indicative of a more objective and just approach to granting sanctions for arrest on the part of judges of that country. In connection with this I would like to bring one more number from the practice of the Russian judicial practice. Last year, Russian courts have satisfied 87% of all applications from investigators for sanctioning their procedural actions to impose such preclusion measure as arrest, 91% from courts’ appealed decisions on sanctioning arrests have been recognized by higher judicial instances as legal and justified. These numbers themselves speak that the novelties introduced on this subject into the Russian law on criminal procedure have proved their viability.

And the cited examples confirm the correctness of the resolution of this issue in courts’ favor. In the meantime, the prosecutor’s office as «the eye of the state» will remain an independent procedural state law enforcement body standing guard over the law and order in the country. As earlier a correct decision has been taken to take away the right to conduct preliminary investigation from under the prosecutor’s office’s competence, so now a correct process is going on to transfer the competence on sanctioning arrests to courts. The major thing remains to be reached - to also free the prosecutor’s office from the duty to be responsible for the state of criminality level, and to sanction a number of other procedural actions, such as search in the house, imposition of arrests on post and telegraph messages, control and recording of telephone conversations and other procedural actions through transferring these functions, too, to courts.

It should be said that the humanization of the criminal policy in any society is determined by its aspiration for democratic transformations, enforcement of the system of guarantees of human rights that are the major priority in development of a jural state. As is known, the state as a political organization of society, is created for effective management of processes of interrelations in society in order to put in order and stabilize them, and it should exist for the sake of its citizens and in the name of them. One of the state’s objectives is to ensure protection of the rights, freedoms and legal interests of its subjects. One of such legal means for protecting these human values is judicial defense, including judicial control over application of arrest.

Undoubtedly, procedural procedures discussed in this article will promote the raising of courts’ authority, law enforcement bodies, improvement of society and formation of a jural state. Introduction of the institution of judicial sanction for application of arrest will still more bring our legislation nearer to the standards of international legal acts and raise Kazakhstan’s authority in the eyes of the world public opinion.

That is why there should not be a departmental struggle, the only correct solution is full transfer of the competence on sanctioning arrests to courts. The Man should be the main figure here, as well as his rights and freedoms, since they belong to him from his birth, they are recognized as absolute and inalienable and they determine the contents and application of laws and other legal regulations (Article 12.2 of the RK Constitution).