The lawyer at a stage preliminary investigation: education manual. 9786010407626

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The lawyer at a stage preliminary investigation

Education manual

Compiler Nurmaganbet E. T.

Almaty «Kazakh university Press» 2014

UDC 343.13 LBC 67.411 Т 95 Recommended for the Academic Council of the Faculty of Law and Editorial and Publishing Council of KazNU al-Farabi Reviwers: Doctor of jurisprudence, professor L.Sh.Bersugurova Doctor of Law Kudratov M. (Germany) Candidate of jurisprudence, associate professor Alimkulov E.T.

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The lawyer at a stage preliminary investigation: education manual / compiler E.T. Nurmaganbet. – Almaty: Kazakh university Press, 2014. – 124 p. ISBN 978-601-04-0762-6 The manual of feature of legal status of the lawyer defender at a stage of preliminary investigation taking into account the made changes and additions in a criminal procedure zakondatelstvo of the Republic of Kazakhstan, and also law-enforcement practice. The manual is designed for students and undergraduates of legal higher education institutions and faculties, undergraduates, doctoral candidates, teachers, and also employees of law enforcement agencies, and all interested by questions of criminal legal proceedings. Учебное пособие «Особенности правового статуса адвоката-защитника на стадии предварительного расследования» издается с учетом внесенных изменений и дополнений в уголовно-процессуальное закондательство Республики Казахстан, а также правоприменительной практики. Рассчитано на студентов и магистрантов юридических вузов и факультетов, магистрантов, докторантов, преподавателей, работников правоохранительных органов и всех, кто интересуется вопросами уголовного судопроизводства. UDC 343.13 LBC 67.411

ISBN 978-601-04-0762-6

© Nurmaganbet E.T., 2014 © KazNU al-Farabi, 2014

INTRODUCTION

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he Republic of Kazakhstan along with other states of the former Soviet Union assumed the obligation to provide to any person the rights proclaimed in the international legal acts and freedoms. The constitution of the Republic of Kazakhstan guarantees everyone the right to the qualified legal aid. Protection in criminal trial has long ago the developed traditions and rules. Development of this human rights institute secularly reflects extent of protection of the rights and freedoms of the person and the citizen, in it the true attitude of the state towards the personality, to her inalienable rights, freedoms and legitimate interests is shown. The code of criminal procedure of the Republic of Kazakhstan (RK Criminal Procedure Code) at the heart of the contains new provisions which resulted in need of change and reconsideration of existing paradigms on many habitual criminal procedure institutes. In the territory of the states of the CIS including in the Republic of Kazakhstan, cardinally updated criminal procedure legislation works. The law of the Republic of Kazakhstan «About lawyer activity», for the first time formulated the basic principles of the organization and legal profession activity, allowed to increase considerably efficiency of functioning of legal profession and as a whole strengthened the organization of its activity. At the same time many problems remained unresolved and demand further consideration Among measures for increase of the status of institute of professional protection it is necessary to provide further expansion of powers of the defender, giving to written consultations and references (assured properly) an imperative form, equalizing of procedural position of the defender with position of the state accuser, etc. Orientation to universal interests and values causes research of theoretical and legal bases of activity of the lawyer defender on preliminary investigation on criminal case. High-quality criminal

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procedure activity of the defender has decisive impact on efficiency of protection of the rights of the suspect of criminal trial (accused) at this stage on stages of preliminary investigation. Besides, activity of the defender at a stage of preliminary investigation defines a further course of criminal trial and under certain conditions provides its termination. Realization of legal status of the defender at a stage of preliminary investigation in the Republic of Kazakhstan not fully found the reflection in theoretical provisions of science of the criminal procedure right that predetermined need of its comprehensive investigation. Told assumes carrying out the deep, complex and objective analysis of the called problems, including regulating procedural bases of activity of the lawyer defender on preliminary investigation on criminal case. In addition, analysis of criminal procedure literature and practice demonstrates the lack of addressing the many problems of the participation of defence counsel, the Attorney for investigation. It is through this type of action is going to base the evidence in a criminal case. In view of the criminal procedure law of the Republic of Kazakhstan, there is a need to comprehensively examine the issue from a legal, ethical and legal and forensic perspective, allowing a completely different way to detect existing patterns of counsel in investigative actions. Ensuring the legitimate rights and interests of suspects (defendants) is currently one of the most urgent challenges facing law enforcement agencies of the Republic of Kazakhstan. Research Institute of protection in criminal proceedings is one of the priorities of the current Republic judicial and legal reform. However, it is the Institute for protection of suspects (defendants) in the Republic of Kazakhstan is still insufficiently explored. All this defines need of the appeal to this subject, carrying out complex research of the questions concerning activity of the lawyer defender at a stage of preliminary investigation with application of a scientific technique of research, based on a theoretical material, and also on the basis of synthesis of judicial, investigative and lawyer practice.

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CHAPTER 1 1.1. Formation and development of institute of protection in criminal legal proceedings

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udicial reform of 1864 was a component of reforms of the XIX century. It opened broad lands for basic changes in the public relations, inherently, proclaiming procedural guarantees for all classes and layers of the Russian society. The question of legal profession was a subject of fierce disputes. The judicial representation is known in Russia for a long time, but the real legal profession was never. It was explained by that domination of search process did a figure of the lawyer almost unnecessary. There were only any intercessors, attorneys – the people setting as the purpose not to help justice, and in every possible way to confuse business to win it at any cost. The profession of the defender was insufficiently dear and unpopular. During preparation of reform there was an opinion on abolition of such judicial representatives. Thereof the project of count D.N.Bludov was serious turn towards overcoming of the negative relation of the authorities to legal profession institute. The project which has been taken out for discussion, was exposed to criticism, both liberals, and conservatives. Alexander II created the commission on preparation of judicial reform into which prominent lawyers of that time entered: A.P. Plavsky, N.I.Stoyanovsky, K.P.Pobedonostsev, S.I.Zarudny. The last, according to G. Dzhanshiyev, «gave all the soul to judicial reform». The framers wanted to spread publicity of court charters at the preliminary inquiry, and also allow that stage counsel. In favor of a tolerance of a lawyer at the preliminary investigation stage was evidenced by the fact that the prosecutorial authorities, represented by the Prosecutor shall have the right to participate in all investigative actions. Therefore, protection was recognized as useful and for the accused and for the investigator.

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The State Council, having considered the draft statutes for the Court, considered it inappropriate to establish a transparent investigation; It was also pointed out that the preliminary investigation is «very hard to put back in the proper boundaries, and it is feared that he may consider it our responsibility to oppose the collection of distinctive evidence and accused of hiding evidence of an offence.» The result of the Commission’s work had become «the main provisions of the judicial part of Russia», September 29, 1862.»General provisions» was approved by the Emperor; They consisted of three parts, devoted respectively to a judiciary, civil and criminal proceedings. One of the innovations of «core» provisions was the establishment of the Institute of legal profession and the adversarial principle. November 27, 1862 Emperor, approved a plan for further work on legal reform projects have been developed with the participation of State, 2 offices and the Ministry of Justice, and then discussed in the State Council in may-July, 1864, and was approved by the Emperor, November 20, 1864 judicial reform documents include: the establishment of a judicial Act regulations 4,Statute of Criminal Procedure, Statutes of civil procedure Statutes, the penalties imposed by Justices of the peace. The procedural plan won against the principles of competitiveness, publicity, an ustnost. Declaration of these principles demanded creation of new special institute of legal profession (barristers), «without which conducting competition in civil and judicial debate in criminal legal proceedings for the purpose of disclosure of truth and providing full protection seeming and accused before court will be impossible». The bar was set up to defend the accused in criminal court and representation of the interests of the parties in civil cases. Lawyers were divided into jury panels, attached to the courts, and private attorneys who could serve in the courts not in all cases, and only for the proxies of parties involved in the process, and to address the Court. The Bar Association elected jury Tips, which were intended to resolve the various issues of the legal profession. If the civil trial occurred in all instances of General Court openly,

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publicly, orally and hand to attract lawyers, the participation of defence in criminal proceedings in the pre-trial investigation is not permitted. To bring the case to trial courts at the status conference held on is solved all questions, complaints, we analyzed», argued the Court, etc. At this stage of the process involved. The investigation is accomplished in the concluding debate — speeches of the Prosecutor, defence. Defendant’s counsel in his speech wasn’t supposed to touch the irrelevant items, was obliged to respect the religion, the law and the authorities. After a guilty verdict, the Prosecutor made the conclusion about the punishment. In the opinion of the defendant’s lawyer had put forward their objections, then the defendant was given the last word. Neither counsel nor defendant could not deny the action, recognized by assessors. The Crown Court in the retiring room defined punishment. By 1864, the statutes of the judiciary were independent of court lawyers in their actions on criminal and civil cases and are subject to the disciplinary procedure provided for only for thembecausethe law, a well-regulated the rights and duties of the jury either. Contrary to the progressive ideas of court charters bar, the jury had no adequate guarantees of freedom of speech: her procedural rights were severely limited. The participation of defence counsel in the pre-trial investigation is not permitted. Get acquainted with the case, counsel could only just before the trial, after the clearly spelt out. On the basis of article 353 and 393 of establishment of judicial establishments and article 365, 366 of the Charter of criminal legal proceedings the duty of barristers included protection of defendants in criminal trial on election or to destination chairmen of the general judicial places. Concerning acceptance of criminal protection the ruling Senate expressed as follows: «The charter of criminal legal proceedings based on the accusatory beginning, assumes participation in each criminal case of two persons as an indispensable condition: the accuser and the defender, and the duty is assigned to the last to promote in judicial examination to explanation of facts of the case in interests accused». «Owing to what to the defender acceptance on itself protection of such

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person at all of which innocence he isn’t convinced can’t be blamed. Besides, before the end of judicial examination the defender often has no opportunity to answer in the affirmative on a question of, whether the defendant is guilty of a crime cocked on it». There was no unanimity of views on the matter and among scientists. «Performed by the public function the defender not only can, but also has to protect the defendant, without hesitating of the personal opinion on his guilt because the maintenance of its public task in that and consists not to allow guilt recognition at its absence of proof», – such is a position of professor I.Ya.Foynitsky. This understanding of a duty of the defender in criminal trial was opposed by E.V.Vaskovsky who considered that the lawyer is obliged to protect the defendant so far as, «as it is demanded by interests of society». In the Resolution of the Petersburg Council of barristers of 02.06.1866 it was said that all barristers, being it is available in Sankt - Petersburg and able on a condition of the health to be engaged in affairs, have to execute to destination vessels of a duty of defenders on criminal cases. Supervision over that nobody evaded from execution of these duties, was assigned to Council. Barristers were appointed for protection of defendants only in the general vessels. Protection to destination vessels often put the barrister in a difficult situation. So, it was obliged to protect a face of which guilt it was convinced. The defender to destination had no right to find the defendant guilty if that didn’t confess in the crime. But it at all didn’t mean that the lawyer will have to support any statement of the defendant. The task of the defender appointed by court, consisted in taking from business, to group and present all circumstances which would speak in favor of the defendant, that is would disprove charge or weakened its force. Such circumstances could be found in business. In the Charter of criminal legal proceedings the question of wasn’t resolved, whether the barrister during preliminary investigation accused can render a legal aid on business and if can in what it has to consist. In conclusion of the Petersburg Council of jurors of 1878 it was said

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that barristers render to the defendant a legal aid during preliminary investigation, and this help shouldn’t be limited only to giving and maintenance in court of private complaints instead of the defendant, and can be expressed and in other forms. From 1882 onwards, the Council recognized that «even though the law does not provide for the participation of defence counsel in the pre-trial investigation, but its part of the defendant in this case movement period, in many cases, it appears necessary: in a criminal trial raises very complex legal issues that the defendant cannot, neither decide nor understand. But the ruling Senate disagreed with this decision and recognized that before receipt of business in court for its permission in essence accused having no right to have the defender by consideration of its private complaints, and, therefore, and presentation to the defender for a review of unfinished preliminary investigation of production can’t take place. The charter of Criminal legal proceedings assumed that «for two and more defendants on one business one general lawyer only can be appointed when the being of protection of one of them doesn’t contradict protection of another; otherwise for each defendant the defender» has to be appointed. In practice of the Petersburg Council of barristers in 1869 there was a question, whether the barrister has the right to transfer to other person the protection assigned to it to destination vessels. Council explained that «such transfer can take place only with the consent of court or the defendant, and differently it would be equivalent to refusal of protection». Refusal of the assignment assigned by court was allowed only «in the presence of the sufficient bases to that». Release from protection depended on the presiding judge. Council considered that if protection is transferred to one barristers to other barrister with the consent of the defendant, the defendant had to declare it to the presiding judge. The person assuming protection, already was considered as the defender chosen, instead of appointed. Council believed that transfer of protection couldn’t be recognized correct if the initiative of transfer belongs to the lawyer, instead of the defendant.

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A sworn Attorney appointed defender of the accused at trial has the right to invite lawyers in only such a person who is able to fulfill its duty. Certified attorneys must not only fulfil the functions entrusted to them by the court order, but also do it «carefully and in good faith.» The first condition for such performance was studying the case, preparation for protection. «Every Defender shall before the expiry of the 7-day deadline to know what is committed to him, and find out the facts of the case, he could only through reading and personal explanation from the defendants. A sworn Attorney was obliged to see the defendant, because the latter could change their testimonies in court. A sworn Attorney appointed defender of the defendants had to explain themselves alone with him, read the investigative proceedings and, if necessary, to ask the Court to call further witnesses or experts. Thus, the defendant’s of duty was found to be visiting a lawyer. Importance of institute of legal profession on civil and criminal cases, and in society life professor I.Ya.Foynitsky saw that, «being to the aid of oppressed, and is frequent also innocent, protection is represented to one of the most noble arenas of legal activity. Delivering high self-satisfaction, and constantly turning on itself sympathetic looks of society, a protective profession at the same time represents huge importance and for an organism state. The correct statement and the firm organization of protection are necessary not so much in interests of certain defendants, how many in interests of the judicial truth and judicial advantage because it counterbalances forces of the parties, and to court opportunity to reach between them high position» opens. The Russian lawyer D.N.Borodin in the work «A historical sketch of the Russian legal profession» noted: «Our class legal profession always remained unshakable legality in protection, a civil and political freedom of all citizens, without distinction of nationalities, proceeding from that situation that these foundations of the public best of all protect life of citizens from any violent shocks and attempts». Thus, judicial reform has radically altered the procedures, the procedural and substantive law in part of the Russian Empire.

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The legal profession was a new link in judicial system of the country, and the persons which have united in estate of barristers, categorically disproved everything that was before reform. In legal profession in Russia the progressive forces, not finding to themselves before this sufficient application stretched. From among the first lawyers D.V.Stasov, V.I.Taneev, K.K.Arsenyev, Accusative Gajewski, with EL Spasovich, D.I.Yazykov, P.A.Urusov, S.A.Andriyevsky, F.N.Plevako and others are allocated. All of them were known lawyers, whose names were known already well by the public. United their general aspiration – service to interests of the people. Despite the attacks by the Government, the Russian jury advocacy played a big role in implementing the basic provisions of The Statute (legal statutes) as tolkovatel′nicy laws, and as the enemy: the exchange of arguments and evidence from this contest reveals the truth to the Court. In conclusion it can be concluded that: 1) Institute of jury for the first time in the Russian Empire arose November 20, 1864 year. Since the approval by the State Council Judicial statutes professional lawyers won the right to legal existence; 2) the jury included lawyers who shared on jury panels, attached to the courts, and private attorneys who could serve in the courts not in all cases, and only for the proxies of parties involved in the process, and to address the Court; 3) task bar: to oppose the prosecution to disprove the thesis of conviction, either to reduce his force; 4) the admission a sworn Attorney in criminal proceedings was carried out after the clearly spelt out. The lawyer was given the right to familiarize themselves with the case materials, to develop a line of protection, her voice in court debates; 5) the jury legal profession had no appropriate warranties of a freedom of speech. Its procedural laws were seriously limited. Participation of the defender in preliminary investigation wasn’t allowed. The duty of barristers included protection of defendants in criminal trial on election or to destination chairmen of the general judicial places. The barrister appointed the defender of the defendant,

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had to have a talk with it alone, read investigative proceeding and in case of need ask court about a call of new witnesses or experts. Thus, visit of the defendant was recognized as a duty of the lawyer. Recommended sources 1. Dzhanshiyev G. Era of great reforms. – SPb. 1907 . – 510 pages. 2. Short M.G., Sorokin Yu.V. Reform of the investigative device of Russia in 1860-64//the Soviet state and the right. – 1991 . – No. 10. – 128 pages. 3. Borodin D. N. Historical sketch of the Russian legal profession (to 50 – to lithium of jury legal profession). – Petrograd, 1985. – P.1. – 560 pages. Questions for self-checking 1. History of development of legal profession? 2. History of protection of citizens in the Russian empires? 3. What is the barristers?

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1.2. The status of the lawyer – the defender at a stage of preliminary investigation

The international community attaches the extreme significance of

availability to the person of the qualified legal aid and, respectively, efficiency of the institutes, called to provide such help. According to the subparagraph («with» item 3 of the Art.) 6 Conventions on protection of human rights and the fundamental freedoms, have the right «to protect each accused themselves personally or by means of the chosen defender, or if it has no sufficient means for fee of the defender, the defender has to it be provided free of charge». The specified international legal rule found the reflection in point 3 of article 13 of the Constitution of the Republic of Kazakhstan (RK Constitution): «Everyone has the right to receiving the qualified legal aid. In the cases provided by the law, the legal aid appears free of charge», thereby the state undertook to provide to everyone rather high level of any of types of a provided legal aid, thus, it is necessary to notice, not only in criminal legal proceedings, but also in any other field of activity where there is a need for such help. On level of security of real implementation of this right now it is accepted to judge democratic character not only legal proceedings, but also as a whole a political regime of the concrete state. Similar honourable, but at the same time the state assigned difficult mission to the lawyer as his activity, according to point 1 of article 1 of the Law of the Republic of Kazakhstan «About lawyer activity», is characterized as the qualified legal aid. In terms of the actual implementation of that right now it is accepted not only to judge the fairness of the proceedings, but also in the whole political system of a particular State. «The Advocacy of the same ancient origin as the referees’ title. (Advocatus – means «to eat», to defend, to work). Like the judges, there is a public defender Office, whose task is to safeguard the rights of private individuals. But, in a time when a judge suspends those rights by virtue of their public authority, a lawyer can help only in that it provides its knowledge of laws available to the customer and tries to give a favorable lawsuit for ‘ last chance.»

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Currently, there are about 4 million lawyers. This includes approximately 850 thousand lawyers from the United States, 450 thousand – from countries of the European Community, the -300000 400000 out of India, is from Brazil and around 1500 we are from the rest of the world. As a whole, excluding Japan, it can be said that the more developed a country is, the greater the number of lawyers in her works. For the last time in the Western Hemisphere, the number of looking of this profession has increased significantly. And if in the year 1970 only a few law firms had a staff of 100 lawyers, now in the world there are about 1000 mega firms are. Increased significantly, and the amount of the sums which were rendered legal services. According to the registers of the Ministry of Justice, lawyers in the constituent entities of the Russian Federation-58872 included Attorney organized in boards, bureaus and’s offices. According to the Committee of the registration service and legal assistance of the Ministry of Justice of the Republic of Kazakhstan, currently (year 2011) license to exercise the legal profession have 9 thousand citizens of the Republic of Kazakhstan 179. Lawyers are actually only 3 million people, or 41 percent of 795. Unfortunately, the legal profession and lawyer activity does not command such respect as in highly developed countries of Western Europe and the United States. In these countries, the legal profession is a prestigious institution that enjoys enormous credibility and influence. Suffice it to say that the judges of the English House of Lords – barristers with a 15-year stay in the status bar. Advocacythe way to the (officiating). Each judge-advocate in the past. Even the lawyers in court dress (robe and hairpiece) is basically the same as the judges and lawyers that emphasized their adherence to a single profession, equality and mutual respect. The United States has about 60% of the total number of lawyers around the world. On the sociopolitical role of the holders of a diploma of lawyer in the United States: from 42 U.S. Presidents 25 were lawyers; in particular, lawyers by profession were T.Dzhefferson, A.Linkoln, F.D.Ruzvelt, G. Trumen, R. Nixon, B. Clinton, B. Obama. Over 65% of senators and nearly a half of members of the House of Representatives of the Congress of

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the USA – lawyers. Holders of a diploma of lawyer is half of the 40 percent of State Governors and diplomats. About 45% of persons who occupied the 1960 ‘s top posts in the Government, were lawyers, 25% of the State apparatus were former attorneys. One of the most complex and important types of legal assistance is the work of a lawyer as defence counsel in criminal proceedings, the possibility of significant restrictions and infringement of rights, freedoms and lawful interests of individuals. Under part 1 of article 70 of the CODE of CRIMINAL PROCEDURE, counsel is a person who, in accordance with the law protecting the rights and interests of suspects and accused persons, providing them with legal assistance. An advocate participates as a defender. An advocate is a citizen of the Republic of Kazakhstan, having higher legal education, getting a license to carrying on advocate activity that necessarily being the member of the college of advocates is rendering a legal and help on professional basis within the framework of regulating the activity of the advocate point of article 7 1 a of the Law of Republic of Kazakhstan «On advocate activity.» With the participation of the lawyer in criminal trial as an advocate, in addition to the protection of the suspect, accused, accused at trial, acquitted a convicted person may exercise his spouse or close relative or guardian, trustee or representative of the Organization, under the care of a dependent or a suspect, accused person, defendant or convict, acquitted. Foreign lawyers are permitted to participate in the case as counsel if provided for by an international treaty of the Republic of Kazakhstan with the State concerned, on a reciprocal basis, in the manner determined by law, part 2 of article 70 of the CODE of CRIMINAL PROCEDURE. In criminal proceedings, regardless of whether such alternate defenders, legal education and practical experience in the legal profession, they participate in the only together with a lawyer. In part 3 of article 70 of the CODE of CRIMINAL PROCEDURE States that a defender is allowed to participate in the case from the moment charges (when a person passed a resolution to bring charges or court proceedings, as well as private prosecution, when compiled and approved by a body conducting an initial inquiry

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or a protocol of recognition persons suspected in accordance with part 1 of article 68 of the CODE of CRIMINAL PROCEDURE (then eats when in a criminal case against a person suspected of committing a crimeas it announced the initial inquiry or the investigator, carried out the detention or remanded until the) are clearly spelt out, and at any time thereafter, criminal proceedings. These parts are very different procedural situations, moments, starting with which to participate. Bezlepkin B. T. concerning the moments when business is entered by the lawyer – the defender, writes: «Their general sense consists in what at these moments in business appears either accused, or the suspect. It is possible to protect only whom «attack», eats whom accuse or suspect and officially declare it. From this point the investigator, the investigator, the prosecutor begin implementation of function of criminal prosecution, and pre-judicial production gains competitive character». We can’t agree with this point of view. In our opinion, the sense of the above statutes of part 3 of article 70, part 1 of article 68 Criminal Procedure Code RK is that the right to a legal aid of the lawyer – the defender is guaranteed to each person irrespective of its formal procedural status, including against recognition by the detainee or the suspect if the authorized body of the power concerning this person took measures to which the rights and security of person, including a freedom of movement are really limited. Justice can only be accomplished when listened to all the arguments for and against the suspect (the accused), when the latter are guaranteed the possibility to present their evidence in his case because the suspect (the accused) has the legal knowledge, is unable to fully confront the looking of State authority, which carries out an investigation, prosecution, the prosecution, to the extent that it needs a professional quarterback. Equality between prosecution and defence is provided first and foremost lawyers. Oppose the Prosecutor – a professional lawyer can only advocate is a professional lawyer (advocate). Without a lawyer cannot not only equality of parties in criminal process, but also the realization of the fundamental constitutional principle of the equality of all before the law and the courts, because this principle can be ensured only when

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the prosecution and the defence are equal strength: good knowledge of laws, procedures, professionalism, then eats it is something equally should and could have only professional lawyers-Attorney and lawyer. Professional knowledge of lawyers are not the only criterion of high Crufts qualification – lawyer. Another indicator of competency is its professional ethics. For the legal profession moral foundations, his activities are of particular importance. The lawyer is confronted with human sorrow, grudges, moral injury, suffering, that requires it to not only at compassion but great moral effort. In addition, most lawyers want to make a career, a name that gives not only material, but also a profound moral satisfaction. But to win a good name, a good reputation is not possible without respect for moral and legal foundations of professional protection. The known French lawyer of the XIX century François Etyen Mollo wrote in due time: «The profession of the lawyer consists not in how to make papers or to say speeches because all have to write competently and distinctly state thoughts, and its essence – in the spirit, the moral beginnings, in ideas of legal assistance. The real lawyer has to sacrifice himself, all the abilities for the sake of other people; to become the speaker for the sake of a celebration of oppressed innocence; to be happy that can give a rescue hand poor and test thus moral satisfaction which is more preferable, than the biggest fees». Many works of pre-revolutionary and modern lawyers who constantly emphasized need of moral faultlessness of the lawyer were devoted to ethics of the lawyer. The legal profession was exposed and exposed to attacks most of all because lawyers morally leave much to be desired. Сlaimed that the lawyer can’t avoid falseness. It is differently claimed that the lawyer is «the person doomed to dishonesty». On the one hand, he considered moral and «touching» when the lawyer uses the work and talent on protection of the unfortunate; this is the friend of mankind. On the other hand, the legal profession was presented to as «any young school of resourcefulness of mind and a heart zasusheniye, school of a perversion of any sensible feeling as required, schools of various posyagnoveniye, fearless and unpunished, constant and continued». Such dual perception remained still.

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Criticizing in due time defects of legal profession, wrote: «The criminal defender has to be vir bonus, dicendi peritus (in a translation into Russian: the husband kind, skilled in speech), armed with knowledge and the deep honesty, moderate in receptions, disinterested in the material relation, independent in the belief, resistant in the solidarity with companions». Here that the president of Federal chamber of lawyers of Russia about it writes: «From the point of view of ordinary consciousness the concept «ethics» and «morals» can be hardly applied to the defender of the person who has made an immoral act, especially a crime. However, thus society, certainly, needs lawyers. In this dualism feature of the principles forming ethical bases of a lawyer profession»also is concluded. The president of the Union of lawyers of Kazakhstan A.K.Tugel, fairly notes that: «… any the law won’t give the chance to function normally to legal profession if lawyers don’t develop norm and the rule of the behavior». Unfortunately, lawyers quite often not so care of appearing in the opinion of society faultless in moral and legal relations. So, by results of poll which has been carried out, the main professional qualities of the lawyer consider: the general and legal culture – 54,4%, professional activity – 38,8% and integrity – 24%. Ability to empathy, respect to the person, respect of its advantage noted only 14,2% of lawyers. Students on the first three places among professional qualities of the lawyer put the general and legal culture – 81%, professional activity – 56% and eloquence – 31%. Thus, neither lawyers, nor students who will work as lawyers, don’t consider moral qualities as leading professional qualities for the lawyer. Unfortunately, it is necessary to draw a conclusion that the moral at lawyers becomes not in honor and at lawyers of other specialties too. From here and poor quality of work of law enforcement agencies. Unfortunately, we must conclude that the morality of thelawyersis not well-respected,Yeslawyers and other professions too. Hence the poor quality of law enforcement. The lawyer is allowed to participate in the case as defence counsel,

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upon presentation of certificate, i.e. a document certifying his membership in the bar, and orders, that is, a document certifying that the legal advice to protect the accused or suspect in this criminal case assigned to him. It is important to note that the law does not require that the legal structure in which the lawyer is, territorially belonged to the area where the investigation was conducted. By the general rule suspected (suspect) solve, whether the help of the defender is necessary for them. However the law (item 1 – 10 p.1 Art. 71 of the Criminal Procedure Code of Republic Kazakhstan) recognizes participation in business of the defender obligatory, when: 1) the suspect accused, the defendant condemned petitions for it, justified; 2) the suspect accused, the defendant condemned, justified didn’t reach majority; 3) the suspect accused, the defendant condemned, justified owing to physical or mental defects can’t independently carry out the right to protection; 4) the suspect accused, the defendant condemned, justified doesn’t know language in which legal proceedings are conducted; 5) the person is accused of commission of crime for which as a measure of punishment imprisonment for the term of over ten years, lifelong imprisonment or the death penalty can be appointed; 6) to accused, to the defendant condemned, justified arrest as a measure of restraint is applied or it is forcibly directed on stationary forensic-psychiatric examination; 7) between interests of the suspects accused, the defendants condemned, justified, one of which has the defender, there are contradictions; 8) the representative of the victim (the private accuser) participates in criminal case production or the civil claimant; 9) when considering the case the prosecutor (the state accuser) participates in court; 10) accused, the defendant condemned, justified is outside the Republic of Kazakhstan and evades from an appearance in bodies of preliminary investigation.

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In the cases provided by points 1-6, 10 p.1 by Art. 71 of the Criminal Procedure Code of Republic of Kazakhstan, participation of the defender is provided from the moment of recognition of the person to the suspects accused, the defendants condemned, justified, point 7 – from the moment of contradiction identification between interests of the suspects accused, the defendants condemned, justified, points 8, 9 – from the moment of the legend accused to court. If in the presence of the circumstances provided p.1 by Art. 71 of the Criminal Procedure Code of Republic of Kazakhstan, the defender isn’t invited to the suspects accused, the defendants condemned, justified by their lawful representatives, and also other persons on their assignment, the body conducting criminal trial, is obliged to provide participation of the defender at the corresponding stage of process about what it takes out the resolution, obligatory for the professional organization of lawyers. Consideration of criminal case without participation of the defender in above-mentioned cases is the essential violation of the criminal procedure law attracting cancellation of a sentence (item 4) of h. 3 Art. 415 of the Criminal Procedure Code of Republic of Kazakhstan). The criminal procedure law uses the concepts «invitation of the defender», «ensuring participation of the defender» and «appointment of the defender». The invitation is carried out by suspected (accused) or his representative at their discretion. Other persons can invite the defender only on an assignment or with the consent of the suspect (accused). When the suspect (accused) is a minor, his assignment or a consent to transaction by the invitation of the defender demand receiving a consent from their lawful representative owing to requirements p.1 Art. 22 of the Civil code of the Republic of Kazakhstan. If it becomes clear that the person who has made criminal and illegal act, was recognized incapacitated, the invitation of the defender, or giving an assignment or a consent to its invitation is an exclusive right of the trustee. The invitation of the defender has to be made according to the written or oral petition of the suspect of this petition (accused) with entering in the protocol of the corresponding investigative or procedural action.

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Criminal Procedure Act uses the term «counsel», «inviting the participation of defence counsel and the appointment of counsel. The invitation is carried out by the suspect (the accused) or his representative at their discretion. Other persons may be invited back only at the direction of, or with the consent of the suspect (the accused). When the suspect (the accused) is a minor, his order or consent to the execution of the transaction at the invitation of the Ombudsman require the consent of their legal representative of the requirements of part 1. 22 of the Civil Code of the Republic of Kazakhstan (Republic of Kazakhstan CIVIL CODE). If it turns out that the perpetrator of the criminal act, it was recognized as incapable, the Defender, or giving instruction or consent on his invitation is the exclusive right of the guardian (ch. 2, art. 26 Republic of Kazakhstan CIVIL CODE). Invitation to counsel shall be made upon written or oral request of a suspect (accused) to the motion in the minutes of the investigation or proceedings. In accordance with art. 13 the Constitution of the Republic of Kazakhstan the main content protection is to provide the suspect (the accused) of qualified legal assistance. The literal meaning of the constitutional provision, the role of defence counsel in criminal proceedings should be to help the the defendant legally competent exercise of their procedural rights and obligations. But criminal procedure the Defender is not homogeneous. Comprehensive nature manifests itself in various activities of the Ombudsman for the rights and legitimate interests of the suspect (the accused) which preventive measures. Principal among these are: 1) legal assistance to the suspect (the accused); 2) the participation of defence counsel in the evidence; 3) protection of rights and legal interests of the suspect (the accused). This classification is based on three key challenges for defence counsel in criminal proceedings. They clearly states the law, defining the Defender as a person engaged in the procedure established by the CODE of CRIMINAL PROCEDURE of protection of rights and interests of suspects (defendants) and providing legal aid in criminal

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proceedings (part 1 of the CODE of CRIMINAL PROCEDURE, art. 72;) giving counsel the authority to collect and submit the evidence required for legal aid in the manner prescribed by article 3 h. 125 of the Republic of Kazakhstan; involve specialist in accordance with art. 84 of the Republic of Kazakhstan; to file petitions and offsets, etc. Protection of the rights of the suspect (the accused) stands out for us and as a separate task, and how the activity because it (protection of rights) correspond to the essence of individual rights in criminal proceedings and, at the same time, is not identical to the other two objectives and modes of procedure. Therefore, the constitutional guarantee of a suspect (accused) to qualified legal assistance attorney should be interpreted as requiring an active defender of criminal procedure aimed at providing legal assistance to defendants, the participation of defence counsel in evidence, as well as to protect the rights and legitimate interests of the suspect (the accused). Qualified legal assistance is particularly important for the person against whom criminal proceedings, at the initial stage of its participation in the process. At the time of the trial the defendant has been made aware of their rights and have some experience of their use during the preliminary investigation. In addition, competition and transparency in the judicial process enables him to see and hear how similar rights are implemented by other parties to criminal proceedings. Legal assistance provided to defence counsel tend to address immediate needs and can manifest itself in various activities: explaining the suspect (the accused) its legal status in criminal proceedings; explain the nature of suspicions or charges; assistance in drafting his client applications, complaints and other procedural documents, etc. Of course, exactly the amount of legal aid counsel, in each case in advance. His character depends greatly on the characteristics of a specific criminal case, type and category of the offence of which he is suspected or accused, as well as its legal culture. Some of them may need only to clarify the rights of others in the assistance in drafting pleadings, some clarification of procedural or substantive law, the fourth need assistance on a range of issues.

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Issues on which the suspect (the accused) should obtain legal advice from a lawyer, may go beyond these issues. We distinguish them because in practice they often form a legal aid lawyer for the suspect (the accused) which preventive measures. For the same reasons, it seems appropriate to consider in more detail the legal counsel of the suspect (the accused) within his client of the most common forms of legal assistance. The activities of the Ombudsman to clarify the legal status of the defendant is explaining the suspect (the accused) of his rights and provide advice on their use. It is very important to familiarize with the defendant his rights because the suspect (the accused) will remember, knowing their value and will know how to implement them, largely depends on the success of its legitimate interests in criminal proceedings. The complexity of this process is that the suspect (the accused) in a relatively short period of time are would refer to remember and understand the meaning of all the services available to him. One of procedural guarantees of successful understanding the suspect (accused) the rights I could begin to provide a duty of the investigator to the suspect (accused) the copy of the protocol which would contain the list of the rights with explanations. However in order that real conditions of use both suspected, and accused the rights, few their nobility were created. It is necessary to understand their value and to be able correctly to apply. All this can and the investigator, the investigator and the prosecutor are obliged to explain to participants of criminal legal proceedings. But it not always succeeds as the person concerning whom criminal prosecution is conducted, often out of prejudice doesn’t trust the person making investigation. Therefore the explanation to the client of essence and a procedural order of use of its rights is one of priorities of the defender which has to be executed at the first communication with the client. Promptly entered into the case, the Defender shall enjoy the right to a date before the end of his first client, given the importance of the investigation for the adoption, amendment or repeal of the measure of restraint. The Defender has to explain that his client, giving explanations and evidence – that’s right, not the obligation of the

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defendant. According to pp. 7, p. 3. 77 Constitution it is not obliged to testify against himself, his spouse and close relatives. Refusal by a suspect (accused) to testify, as well as deliberate falsity is not grounds for the measures, penal or other liability. His end may take place on condition that the suspect (the accused) does not refuse to give evidence. At the same time, the defendant must know that his testimony is a very important means of protection from unlawfully or unreasonably applied. During initial questioning, which will take place immediately after his arrest or the application of a preventive measure, for the first time a suspect has the right to testify. It can provide information that will convince the investigator having to remove suspicions, leading to the abolition of restraint or will change the measure of restraint chosen for less strict. Furthermore, the accused, whose questioning can be preceded by the issue of preventive measures, their testimony is able to rebut the opinion of the investigator, that there are grounds for its application, and thus to contribute to a more favourable decision for the removal of his obligation to appear. Explaining the suspect (the accused) of his right to counsel, should pay attention to issues relating to tactics and the use of client legal remedies available to him. The suspect (the accused) as a party to criminal proceedings not only has rights, but also has the procedural obligations which he must also explain to the Defender. It should be noted that the understanding of these either is difficult, since the Act does not contain a list of their compact. The suspect, the accused bears the either of two kinds: some of them really are expressed in avoiding certain actions specified in the Act; others consist of action prescribed by law in the event of a need for them. Is different and the nature of their legal regulation. On some of the duties of a suspect in the Criminal Procedure Act contains direct instructions (for example, the turnout on the challenges of conducting the initial inquiry, the investigator, Prosecutor or court (Chapter 19 of the Republic of Kazakhstan), others are derived from the code of

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criminal procedure rights of the investigator and the Court to which the incumbent either on (for examplethe obligation to comply with the lawful orders of the Court relating to the order in the Court (art. 327 SSR), etc. It is particularly important for counsel to explain the procedural obligations of the suspect (the accused), for which preventive measures not related to deprivation of liberty. Such a defendant must know: what does the requirement of the law of criminal procedure on his good behaviour; How can assured his appearance to the investigator or the Court; what special circumstances may a legitimate reason for his absence, etc. After explaining the rights and obligations of counsel to provide legal support to the defendant to understand the essence of suspicion (of the charges). This activity consists in the disclosure of factual and legal side of the offence of which he is accused. A proper understanding of the offence charged and its legal effect is of major importance to implement targeted accused of their right to protection. The expressive activity of the substance of the charges, the person may apply to the questioning of the witnesses, the discovery of documents with probative value, which, in his opinion, refuted the charge and eliminate the need for the application of the preventive measure and above all not relating to the restriction of freedom of movement. In the understanding of the facts of the offence, the accused is usually not difficult. Therefore, the task of the Ombudsman is to provide interpretation of the legal concepts contained in the articles of the criminal law that can be applied in this case. At the same time quarterback, based on a frank conversation with his client, must explicitly tell him about the presence or absence in the Act of crime. Knowing your real situation contributes to the accused the right side of the case. «The lawyer is obliged to harmonize its position on the case with his client, one of the most important prerequisites for a successful defence.» But what is the position on the case? If you ask this question to lawyers, then each one will define this concept in its own way. They will answer you this: result which counsel wants to achieve; client

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version developed (or endorsed by) a lawyer; protection plan; the Defender’s relationship as charged; assessment of the protection of the circumstances of the case. In our view, the case should be viewed from the perspective of the adversarial criminal process. Suppose it was murder. Neither the Defense nor the prosecution had not seen the incident directly. However, the procedural provision obliges parties to retroactively restore the objective reality, explain it and give a legal estimation. Position on the case – this is the actual and legal picture of the incident from the point of view of the prosecution and for the defence. As a rule, the points of view of the parties do not coincide, and every side restores this picture on to it. Principle of contentionness consists in that picture, to do the convincing for a court. In our case a with murder prosecution will assert that a citizen for-committed crime., and defence will insist on a presence an alibi for a defendant to. The After parties will take up the position of the confirmation and refutation of the opposite. As a result there will be update versions. Both Positions will be approached or removed from truth. In the total contention fight court of signs (a) decision, but as, or actually, the was, nobody and never knows already. It is possible to say through such practical understanding cleanly, that position in business is this explanation of the happening. In this connection, l.(A). Voskobitovadetermines position in business as a certain point of view on the circumstances of business, air-conditioned by a judicial role and interests of certain side. The Defender should not be eliminated from the tips on tools and tactics to counter the charges. We believe that recommendations may be made in a form that would help her to come to grips with an issue that has excluded the possibility of someone accused of suggestion else’s conclusions. That requires sensitivity, tact, defender of psychological characteristics of personality. Explanation the suspect (the accused) values of favourable and unfavourable circumstances for him important because of their choice depends on the presence or absence of preventive measures. Knowing the circumstances taken into account in the election of a preventive measure, the accused may communicate information to

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the investigator or lawyer, positively characterize his identity, or to indicate the seriousness of the marital status or its painful condition and thereby motivate the request for cancellation or change penalties. Explain to the suspect (the accused) of his right to counsel after taking legal action. It appears that the defendant and the defence counsel should be informed of their either. The defendant must know that his defence counsel may act only by lawful means and methods in accordance with the requirements of the law on criminal procedure, ethics, because any legitimate action gave rise to the rights and duties of lawyer for his client, but any «actions give rise to rights and obligations for the lawyer personally. The lawyer must explain the suspect (the accused) lack the right to renounce the protection itself, however, was about Malabouth.o.p.e.sthe outcome of the case. When the defendant is aware of the competence of his lawyer, he has a reason to judge how well the latter uses to protect their rights. This, in turn, gives the suspect (the accused) to defence counsel, who very not enough activity. The suspect (the accused) should get back information about the rights and obligations of the other participants in the criminal process, involved in this process. This will enable client understand the procedural rules for the investigation and in accordance with them to determine their course of action, take action. Assistance in compiling client applications, complaints and other procedural documents occupies an important place in the activities of the counsel of the suspect (the accused) which preventive measures. The suspect (the accused) are the most interested in the outcome of the case and stakeholders most affected by measures of coercion. Therefore, the primary duty of the lawyer is to verify the Justice concerning legality and validity of the preventive measure and the other procedural decisions investigator (Procurator, Court). In the event of establishing irregularities of the law within the framework of criminal proceedings, counsel must notify the client and help him make a complaint against «or unfounded procedural action or decision, including on the application of the preventive measure.

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Criminal procedure legislation of the Republic of Kazakhstan does not provide for a special form of procedural documents, in which the suspect (the accused) exercises its right to lodge petitions, complaints, statements, etc., logical and reasoned statement of the suspect (the accused) requests, law enforcement officials can quickly decipher their contents and take a procedural decision. But many suspects (defendants) even when the overall high literacy, have difficulty in drawing up such documents. This is not surprising, given the overall low level of legal awareness of the population and lack of appropriate experience. Therefore, the suspect (the accused) in such cases need legal counsel. Might give the impression that if he participates in, statements, Petitions, complaints, etc. are them in his own name, and the suspect (the accused) only endorsed the opinions of counsel. So, really, it happens often. But sometimes there are situations in which a document can be drawn up only on behalf of the defendant. For example, a defender, contrary to the opinion of the suspect (the accused) – no basis for the allegations of a petition. In such cases, the Defender is not exempt from helping his client to state his views clearly, correctly and legally possible, reasonably. Criminal procedure literature in procedural terms solicitoradvocate define by implementing: 1) his rights specified by law; 2) rights and obligations; 3) the rights, duties and either; 4) its relationship with other participants of criminal legal proceedings, proceeding from the rights provided to the defender. In the theory of the right it is recognized that the branch status (provision) of subject is defined by that legislation within which its rights and a duty are established. Thus, procedural position of the lawyer defender has to be regulated by the criminal procedure law (Art. 21, 23, 70, 74, etc. Republic of Kazakhstan Criminal Procedure Code). Not inclusion in concept of procedural position of the defender of responsibility and not his definition through its relationship with other participants of criminal legal proceedings, proceeding from the

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rights provided to it, speaks as follows. As responsibility is only one of three main forms of a legal duty, there are no bases for its allocation as an independent element of procedural situation. As for definition of procedural position of the defender through his relationship with other participants of criminal legal proceedings, proceeding from the rights provided to it, as a rule, I noticed, similar relationship isn’t settled by the right: they are regulated by standards of professional lawyer ethics therefore through them it is impossible to define procedural position of the lawyer defender. Confirmation to that are the Rules of lawyer ethics prepared by the International Union (Commonwealth) of lawyers. Besides, as shows the analysis of ethical codes of the USA, the European community, Finland, Sweden and other countries, all these codes contain the rules regulating such main groups of the relations, in particular, as: 1) lawyer and client relationships; 2) lawyer relationship and Court, other State bodies. Thus, the procedural position of defence counsel should be determined through its rights and obligations under the law on criminal procedure. The idea of creation in Russia professional, so-called jury legal profession, contacted authors of Judicial charters of 1864 competitive order of process. Thus as a sample the German-Austrian type which characteristic feature was connection in one hands of functions of right protection and judicial representation served. At such organization the lawyer is not only the lawyer and the judicial speaker, but also the attorney of the client preparing business, carrying out the judgments, conducting all efforts. Thus, from the point of view of the legislation of 1864, the lawyer united two functions: right protection and judicial representation. Despite it, in legal literature of that time on the matter there were various opinions. So, adhered to the same position, as the legislator. The considered that the legal profession is institute of judicial representation, but in criminal trial it has nature of right protection that, however, doesn’t serve as an obstacle to definition of the defender as representative. In our opinion, this point of view raises doubts: if participation of the defender in criminal trial has nature

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of right protection, and the defender, following logic, has to be the lawyer, instead of the representative. According to, it is necessary to distinguish judicial representation and legal profession as the first has private-law character, and the last – public therefore the lawyer is a lawyer, instead of the representative. In Soviet criminally - procedural literature the view of the lawyer defender as the lawyer, urged to protect the rights and legitimate interests accused, was defended by though earlier he believed that the defender is the assistant to court «in establishment of all facts of the case necessary for the resolution of a lawful and reasonable sentence». This position was subjected to criticism because the defender reveals only the circumstances justifying, or softening responsibility accused, but doesn’t participate in any way in establishment of all circumstances on business. As for definition of the defender as lawyer, it also can’t be taken into account for the following reason. This concept emphasizes the general in activity of the lawyer, as well as activity of all other participants of process – to protect the rights and legitimate interests of the suspect (accused). But it doesn’t reflect special, doesn’t emphasize specifics of procedural position of the defender which is connected with an originality of function of protection carried out by it, with specifics of specific objectives on proof of only such circumstances which acquit the suspect (accused) or soften his responsibility, with features of means and ways of protection carried out by it. Throughout history of the Soviet criminal procedure legislation until the end of 1958 the defender was considered as the representative of the accused. But the situation changed with acceptance of Bases of criminal legal proceedings of USSR and federal republics in 1958 and the Criminal Procedure Code accepted according to them KAZSSR where the term «representative» ceased to designate the defender. It found reflection and in the Criminal Procedure Code of RK in which the defender is defined as the person which is carrying out in an order established by the Code protection of the rights and interests of suspects and accused and rendering to them a legal aid (p.1 by Art. 70 of the Criminal Procedure Code of RK). Nevertheless, according to, «... conclusion that the defender isn’t a representative accused, it is

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impossible to make because protection in criminal legal proceedings is a type of broader concept of procedural representation. However if the defender it would be possible to carry to the representative accused, and protection – to institute of procedural representation, from the point of view of legislative equipment, logicians of the legislator would follow in relation to it to use the same way of regulation, as well as century of 3 Art. 80 of the Criminal Procedure Code of Republic of Kazakhstan. Lawful representatives and representatives of the victim, the civil claimant and the private accuser have the same procedural laws, as persons represented by them and in h. 2 Art. 81 of the Criminal Procedure Code of Republic of Kazakhstan: the representative of the civil respondent has the same rights, as the person represented to them, but it didn’t make it neither in Art. 49 of the Criminal Procedure Code of Republic of Kazakhstan, nor in Art. 74 of the Criminal Procedure Code of Republic of Kazakhstan «Powers of the Defender». It at all didn’t designate in them the defender as the representative. Means, the legislator puts in concept of the protection which is carried out by the defender, other sense and value, than in concept of the representation which is carried out by representatives of the victim, the civil claimant, the private accuser, the civil respondent and the lawful representative, considering protection and representation as two various procedural institutes. If the protection is «pure» code of criminal procedure, the Institute mission Institute – mixed by incorporating elements of civil law method of regulating social relations. This is expressed in the following: 1) If counsel is representative of a victim, civil plaintiff, civil respondent and the private prosecutor may at any time renounce the orders, the Defender does not have the right to refuse the protection of the accused; 2) if positions at differences in between the representative and the represented could not take place, the discrepancy between the defence counsel and the accused is allowed within certain limits, for example in self-incrimination had. Based on the above, it can be concluded that neither the SSR

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nor the law of Republic of Kazakhstan «on advocacy» don’t identify and distinguish the concepts of counsel and spokesman, investing in each different meaning and value, just as in the institutions for the protection and representation. In criminally - procedural literature the view of procedural position of the lawyer defender as on the representative accused was defended and many others. Thus it is necessary to notice that as representative they defined procedural position of the lawyer defender through nature of its relationship with accused. It means that the defender participates in matter in interests accused, on its assignment or from its consent and can be at any time detached if the accused refused it but if he didn’t refuse the defender, that, neither court, nor the investigator has no right to eliminate it from process, as well as the defender – to refuse protection. However the relations between the defender and the client significantly differ from the relations of the representative and represented in civil law and process. Most fully showed these differences. In his opinion, they consist in the following. First, in civil law and process the representative can replace represented, and in criminal legal proceedings the defender doesn’t replace accused, and works along with it. Secondly, in civil legal proceedings the lawyer isn’t the party, he only the representative of the party and acts not on its own behalf, and on behalf of the represented. In criminal legal proceedings the defender acts on its own behalf. It not only the representative accused, but also itself the party realizing the rights for rendering a legal aid to the accused. In - the third, in civil law the representative has at any time the right to refuse the power of attorney issued to it. In criminal legal proceedings the lawyer has no right to refuse the assumed protection accused. Therefore doesn’t follow as supporters of a view of the defender as on the representative accused considered to identify it with the representative in civil law and process. Besides, for definition of procedural position of the defender nature of its relationship with government bodies and their officials conducting process matters also. It means that the lawyer defender is in a certain independence in relation to accused as represents his rights and legitimate interests in the procedural relations with the person making

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inquiry, the investigator, the prosecutor and court, using thus lawful means and ways of protection. Based on the above, you can highlight a few key points on which the view of defence counsel as to the representative: defendant’s 1) procedural terms as representative of the Defender is determined through its relationship with the accused and the State bodies and their officials, leading process; 2) despite the fact that the nature of the relationship between counsel and the accused to first characterize as representative and, consequently, give this name to this point of view, this is no reason to equate it with the representative of the civil law and procedure, as they attached different meanings and significance. These key moments in our opinion raise doubts. In - the first, definition of procedural position of the defender as representative through nature of its relationship with accused both government bodies and their officials conducting process as earlier it was noted, doesn’t fit into definition of procedural situation as similar relationship is regulated by standards of professional lawyer ethics, instead of the criminal procedure law in which the rights and duties of the defender are reflected only. Only his rights and the duties established by the criminal procedure law have to make a basis of procedural position of the lawyer defender. To look for other parties which would define its situation in process as correctly I noticed, there are no bases and need. In - the second, definition of the lawyer defender as representative differs from definition of the representative in civil law and process. And it follows not only from carried out above distinctions between them. Supporters of a view of the lawyer - the defender as on the representative define it thus as it in the person expresses and protects the rights and legitimate interests of the client. Such treatment of the term of «representative» corresponds to his definition in ordinary, common understanding as person who represents someone’s interests, expresses someone’s views. I recognized that the defender is defined as the representative, only proceeding from common, ordinary understanding of this term, instead of from its use in civil sense. According to the rules of interpretation, if there is a legal definition

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of the term, or if the legislature otherwise determined its value, then the meaning of the term is to be understood and, despite its different meaning in the everyday language of the code does not define the term «representative», it is contained in the civil law, with a different sense than in the mundane sense. in civil lawthe representative acts on behalf of the represented, in the everyday sense representative simply represents the interests of whoseanyone who expresses opinions. In civil law, the representative action it creates, modifies or terminates the civil rights and obligations that, in ordinary-such a definition does not. Therefore, from the point of view of interpretation rules: a) the term «representative» needs to be understood only in civil sense; b) distribution on the defender of definition of the concept «representative» of its ordinary understanding is illegal. The legislative equipment makes the following demands to which the legal definition (definition) has to answer: 1) with a certain adequacy to reflect essence of the definitsiruyemy phenomenon; 2) to have conventional character, i.e. to be based on a certain scientific recognition, consensus; 3) to be, i.e. to be in a certain logical coupling with the previous conventional or settled definitions, fundamental definitions of the current legislation. Only the legal definition of the representative in civil law (item 1 of Art. 163 of Republic of Kazakhstan Group) conforms to similar requirements. If the defender can’t be defined neither from the point of view of interpretation rules, nor from the point of view of legislative equipment as representative in his ordinary understanding, and the concept of the representative of civil sense to it is inapplicable and it is conventional, it follows from this that in concept of the defender other sense and value, than in concept of the representative is put. If defence counsel cannot be defined in terms of the rules of interpretation, nor from the point of view of legislative technique as old as his representative in the understanding, and the notion of a

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representative in the civil law sense is not applicable to it and that it is generally accepted, it follows that the concept of Ombudsman is attached different meanings and significance than the notion of a representative. Thus, the view of defence counsel as a representative of an accused cannot be accepted as valid for two reasons: 1) definition of procedural status as representative of the Ombudsman, through its relationship with the accused and leading the State bodies and their officials do not fit the definition of procedural provisions, as such relationships are governed by rules of lawyer ethics, not law on criminal procedure, as required by the definition; 2), the term «representative» in the everyday sense can not be used in the case of counsel, neither from the point of view of legislative technique, nor from the point of view of the rules of interpretation. Procedural position of the defender as the independent participant of process was defined by and many other scientists. They proved the position the following arguments: first, the defender is allocated with the law the impressive volume of the rights, the duties allowing effectively to carry out protection; secondly, it has the right to produce the evidence; thirdly, the lawyer defender possesses full procedural equality with other participants of process on submission of proofs and participation in their research, the statement of petitions on judicial examination; fourthly, in a choice of tactical procedural means and protection methods the lawyer is independent, independent of will of the client and proceeds from concrete facts of the case and the law. This position fits into definition of procedural position of the lawyer defender through his rights and the duties established by the law and therefore it is necessary to recognize it correct. Thus, the procedural position of defence counsel should be defined as an independent party. On the independence of defence counsel in criminal proceedings suggest the following basic conditions: 1) with powers on implementation of protection it is allocated by the criminal procedure law, and the same law provides it the right to use all which haven’t been forbidden by the Criminal Procedure Code of Republic of Kazakhstan of means and ways of protection (Art. 74 of the Criminal Procedure Code of Republic of Kazakhstan, etc.);

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2) the lawyer is the independent adviser for legal questions; 3) the lawyer is obliged honestly, reasonably and honestly to defend the rights and legitimate interests of the principal the everything which haven’t been forbidden by the legislation by means; 4) the law and moral in a profession of the lawyer above will of the principal. No wishes, requests or the instructions of the principal directed on non-compliance with the law or violation of the rules, the provided Criminal Procedure Code of RK, can be executed by the lawyer. The above provisions of the CODE of CRIMINAL PROCEDURE, the law «on advocacy» is a mechanism that restricts the independence of the Ombudsman, which is to treat it as an absolutely independent, nor from what (law, morality) and nobody (the rights and legitimate interests of the principal) is independent. This limitation is reflected in the subject matter of protection (the rights and legal interests of the principal) and the limits of protection (Defender is authorized to use all means not prohibited by the CODE of the Republic of Kazakhstan and ways to protect). Accordingly, the procedural position of defence counsel can be defined as an independent participant in the process, with the law on criminal procedure, certain rights and obligations for the protection of the rights and legitimate interests of the suspect (the accused) all Republic of Kazakhstan CODE not prohibited means and methods of protection. In German criminal procedure literature about the procedure the situation unsettled Defender. Define it as representative of an accused, the accused’s Assistant, as and as an organ of the criminal proceedings. most enjoys the same recognition and, in essence, is the concept of the dominant legal position as defender of the criminal proceedings. in clarification of the former German Imperial Court, Supreme Court and the Constitutional Court of GERMANY Defender straight is called body of criminal proceedings.as the Defender, the definition of criminal proceedings is enshrined in the regulations and, in particular, in article 1 of the federal regulation on the legal profession: «the bar is a criminal justice agency.» the origins of this

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concept and is also connected with the institution of the so-called legal professional organization – courts of honor for lawyers. Position as a defender in criminal proceedings should be settled as the position of the Prosecutor and the Court in the Criminal Procedure Act, but it in no way refers to him as an authority in criminal proceedings, the criminal justice authorities are public authorities. the Defender has never held a position of such a body and do not perform public tasks. Recommended sources 1 . D.P.Advokat’s Whatman paper in criminal trial. – M, 1976. – 290 pages. 2 . Sheyfer S. A. Collecting of proofs in the Soviet criminal trial: methodical and legal problems. – Saratov, 1986. – 271 pages. 3 . Gutsenko K.F. L.V head. Filimonov B. A. Criminal trial of the western states. 2nd prod. additional and испр. – M: Zertsalo-M, 2002. – 528 pages. Questions for self-checking 1.The status of the lawyer defender on preliminary investigation? 2. Polnomotion of the lawyer defender judicial trial? 3. Procedural or legal status of the lawyer defenderl?

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1.3. Subject and limits of activity of the defender at a stage of preliminary investigation

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ndependence of defence counsel in criminal proceedings is not absolute is it limited to the subject of protection (the rights and legitimate interests of the principal) and outside (the Defender shall be entitled to use all the not prohibited by the CODE of CRIMINAL PROCEDURE of the means and methods of protection). Subject matter of protection is the law and the legitimate interests of the accused. The rights and legitimate interests of the accused, they have much in common, on a kind of podsposobami of legal regulation, are discretionary in nature, being independent of the legal status of the individual elements by defining a measure of behavior, a specific criterion of lawful acts, etc. But there are also together at differences of right of legitimate interest: 1) if provided with specific legal rights to other persons, the legitimate interests of a legal nature desires; 2) if the entity is (a) is legally guaranteed right together and secured by obligations to other persons, the nature of the legal interestpermissibility of a particular behavior in simple, which opposes, only a general legal obligation to respect it, don’t break it, because he himself is the legal possibility of a general nature. The right of the accused is a measure of the possible conduct of the accused secured a legal obligation of others. Together rights of the accused may be classified into groups according to their purpose: 1) to protect the unreasonable or illegal use of coercive measures; 2) to protect the integrity of the person, privacy, home, correspondence, etc.; 3) to protect the property and other personal rights. The legislator, using the term «legitimate interest» in respect of the accused p. 1: 0 2 St. 69 of the RK, not explained it. There is

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no indication command to that effect and by the Supreme Court of Kazakhstan, who also use the term in their by-laws, definitions and explanations. Despite the fact that the legislator has recognized the existence of the term «legitimate interest», however, in the legal literature, the concept of the legitimate interest of the suspect (the accused) was denied for the following reasonsin: because of the impossibility to determine, first, the legitimacy of any subject of interest by (result) his incompetence, secondly, a criterion for distinguishing between legitimate and illegitimate interests of the accused and all of it until the truth of the case has not been established and legally not entered into legal force court verdict from the analysis of the current legislation on criminal procedure of the Republic of Kazakhstan, the defense attorney is obligated to uphold the rights and legitimate interests of the defendant. in addition, a lawyer may not act contrary to the legitimate interests of the principal, to provide him with legal assistance for reasons of self-interest, immoral interests or while under the influence of outside pressure. From the above provisions of the law «on advocacy», of the code of ethics lawyer that: first, the defense attorney is obliged to defend the rights and legitimate interests of the accused, knowing that under them to be understood and how to distinguish from illicit interests, which he should not defend; Secondly, neither the legislature nor the definition of rule of law are not binding on the Community interest of the accused to defence counsel on sentencing. Thus, counsel can and should determine whether entered or not enforceable the sentence lawful interest of the accused or not, and depending on it to decide: whether this interest protection. But in any case, the lawyer may not act contrary to the legitimate interests of persons applying for legal aid. Bettering their language skills, the legislator, in p. 1: 0 2 St. 69 of the RK, the accused shall have the right to defend their rights and legitimate interests, and the quarterback, according to article 1. 70 of the ROK, to protect its rights and interests has not stated why in the latter case, the word «lawful» before interest. This gap is seen at

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the sight of the legislator. If the accused has legitimate concerns and this has been recognized and enshrined in art. 69 the CPC, regulating procedural position of the accused in criminal proceedings, and other articles of the CODE of CRIMINAL PROCEDURE of the accused must be legitimate and not just interests, as in the aforementioned article 1 h. 70 of the RK. Therefore, we find it reasonable to h 1 St 70 of the CODE of CRIMINAL PROCEDURE, as follows: «the Defender is a person engaged in the procedure established by the CODE of CRIMINAL PROCEDURE of protection of rights and legal interests of suspects and accused persons and providing them with legal assistance within the framework of criminal proceedings. The category of «legitimate interest» is developed both in the general, and in criminally - procedural literature. The legitimate interest is reflected in the objective right or following from its general sense and in a certain degree the simple legal permission guaranteed by the state expressing aspiration of the subject to use the concrete social benefit, and also in certain cases to address for protection to competent government bodies – for satisfaction of the requirements which aren’t contradicting public. Thus, those interests which contradict satisfaction of public requirements, are illegal. As criterion of an otgranicheniye of legitimate interests from the illegal possibility of satisfaction of personal needs not to the detriment of public serves. For example, desire accused to give false evidences doesn’t promote the solution of tasks of the criminal procedure law. At the same time, it is udovletvorimy and solvable the state interest as in our society there is an innocence presumption, there are bodies on which the duty lies to prove all points of charge irrespective of explanations of the suspect (accused). Especially as the Criminal code of RK doesn’t provide criminal liability accused for giving obviously false testimonies and for refusal of evidence. The legitimate interests of the suspect (the accused) – interests under the law and the obligations deriving from it, but not contrary to it, defined by the procedural situation of the suspect (the accused) and limited the rights and freedoms of other persons involved in criminal proceedings.

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From the point of view of functional mission of a legitimate interest accused noteworthy definition was given by M. S. Strogovich. He believed that «the legitimate interest of the accused consists in that at investigation and judicial proceedings of its business were fully, comprehensively and all circumstances which testify in favor of accused are impartially collected and checked, acquit him or soften its responsibility that opportunity to challenge charge was provided to the accused, to adduce arguments and proofs in the justification or for mitigation of the responsibility». The maintenance of a legitimate interest accused includes the following elements: 1) the accused is interested in that it wasn’t restrained in the right to protection against the brought accusation, provided to it by the law; 2) inadmissibility of criminal prosecution, the legend to court and the more so condemnations for a crime which the accused didn’t make; 3) its aspiration not to be instituted criminal proceedings and the more so – condemned for commission of more serious crime, something which he actually made; 4) criminal prosecution only for that crime which accused actually I committed which all circumstances are established as a result of comprehensive, full and objective investigation and judicial proceedings that it was inflicted fair punishment taking into account all justifying it or circumstances softening criminal liability; 5) aspiration to provide protection of personal and property rights in the course of criminal legal proceedings and not to be exposed to the coercive measures which aren’t caused by interests of establishment of truth and achievement of other problems of criminal legal proceedings. Pashin S. A. based on statistical data on a ratio of positions of defenders in court with sentences and appeals, I noted: «Lawyers connect legality of interests of clients not with their actual guilt in commission of crimes incriminated to them, and only with reliability of establishment of their fault». The similar conclusion raises the question of a validity and reliability ratio in activity of the lawyer defender. And it isn’t casual as guilt not only «proved», otherwise,

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authentically established, but also expressed in the form of guesses, assumptions and versions, i.e. in the form of probable knowledge can be true (actual). The lawyer defender can’t take probable knowledge of guilt of the client for his true guilt and shouldn’t do it. In criminal legal proceedings, according to an innocence presumption: guilt of the person has to be proved in the order provided by the law and is established by the sentence which has entered validity of court. Thus, the proved guilt is authentically established guilt which has to be not only the corresponding reality, but also to be reasonable the proofs collected on business specially on, authorized government bodies and their officials. The lawyer has to build protection of this conceptual situation, asking itself a question: whether guilt of his client is reasonable or authentically established by competent authorities of the state and their officials as as a whole, and on epizodno. And on the basis of the received answer to use appropriate means and the ways of protection allowing it reliably and effectively to defend the rights and legitimate interests of the client. Limits of protection are defined by that the defender uses all which haven’t been forbidden by the Criminal Procedure Code of RK of means and ways of protection (item of 12 h. 2 Art. 74 of the Criminal Procedure Code of RK). In criminal procedure literature there is no uniform understanding of means and ways of protection. So, A.D.Boykov considers means and ways of protection as the rights and duties of the lawyer and at the same time – as «receptions of protection and its tactics». T.V.Varfolomeyev considers that, proceeding from word meaning «means» and «way» and their uses in practical activities by lawyers, the security measure is the procedural actions of the defender directed on performance of professional duties provided by the law, and ways of protection – the receptions used by them for the most effective protection. Adamenko V.D. understands as means of protection – the criminal procedure activity of subjects of the protection provided by the law, directed on protection realization, and under ways of protection – rules, receptions which are applied by subjects of protection in their activity.

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The concept «means» of Russian has some values. In order that it is correct to choose an etymological word meaning, it is necessary to use the data necessary for using the dictionary. In them it is specified that after word meaning interpretation in necessary cases by italics the examples illustrating its use in speech are given; they help to understand more stoutly a word meaning and ways of its application. So, after one of word meanings «means» as an example was used the phrase – a security measure. Means, in this etymological value and has to use this word. So, means is a tool (a subject, set of adaptations) for implementation of any activity. Earlier the concept «means» of literature was considered in other value, namely: as reception, a way of action for achievement something. The way is understood as action or the system of actions applied at execution of any work, at implementation something. Therefore, means answers a question than, and a way – as. We believe that means and ways of protection have some values. First, in an abstract form of means and ways of protection it is possible to refer to category of a procedural form of participation of the defender, i.e. to his rights. Such conclusion follows from the analysis of h. 2 Art. 74 of the Criminal Procedure Code of RK where the rights of the defender are listed, and in item 12 are specified that the defender has the right to use other, not forbidden Criminal Procedure Code of RK of means and ways of protection, i.e. other rights which haven’t been provided by this article, but not forbidden Criminal Procedure Code of RK. On activity of the lawyer defender provisions p.1 Art. 16 of the Law RK «About Lawyer Activity» where it is specified extend that the lawyer is obliged honestly, reasonably and honestly to defend the rights and legitimate interests of the principal the everything which haven’t been forbidden by the legislation of the Republic of Kazakhstan by means. Secondly, means of protection are procedural documents in which the protection position concerning criminal case both material is stated, and procedural character, and ways of protection is a system of actions on protection implementation. To means of protection statements, petitions, complaints, etc., belong to ways of protection

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– participation in investigative and judicial actions, debate of the parties, etc. Thus at way means, or perhaps can enter and isn’t present. Everything depends on circumstances of criminal case and on protection tactics. During participation in investigative or judicial action the defender can declare the petition if it corresponds to tactics of protection chosen by him on business, or perhaps and isn’t present if recognizes that in it there is no need. The ratio between means and way of protection is a ratio not between various or each other the absorbing phenomena, and between such which, being in causal, mutually causing dependence and in interpenetration, keep on the relation to each other known independence. Recommended sources 1. Strogovich M. S. Activity of lawyers as defenders accused//the Soviet state and the right. – 1981 . – No. 6. – Page 89. 2. Pashin S. A. Judicial debate in the mechanism of establishment of truth on criminal case: ав­то­реф. yew. ... edging. юрид. sciences: 12.00.09. – M, 1989. – 277 pages. 3. Boykov A.D. Etika of professional protection on criminal cases. – M – 230 pages. Questions for self-checking 1. Legitimate interests of the suspect? 2. Content of the legitimate interests of the defendant? 3. What is a legitimate interest?

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1.4. Problems of definition of a position the defender on criminal case

One of the essential conditions for the effective and meaningful

participation of defence counsel in implementing their duties to protect the rights and legitimate interests of the defendant is the correct definition of the position on the case because «there is a problem with her choice may lead to the abandonment of the accused without defence, have harmful consequences for justice». In criminal procedure literature under the Defender’s position is understood: 1) his opinion concerning fault and responsibility of the client which he defends everything which haven’t been forbidden by the law by means and ways; 2) formulation of a decisive conclusion about guilt or innocence of the defendant; 3) establishment of specific goals of activity of the defender, and also methods of their achievement by the means permitted by the law; 4) the relation of protection to charge, that protection opposes to charge; 5) developing at it at this or that moment of process a conclusion about validity or a charge absence of proof as a whole or its separate parts and means and methods of realization of this conclusion in interests of the accused; 6) procedural expression of the relation of the defender to charge (suspicion), the civil suit; 7) the difficult, many-sided concept defined and as result of activity of the defender, and as process of this activity; both a charge assessment, and otnoshekny to it; both the version of protection, and its formation. Common definitions for the Defender is that they all represent different aspects in one or another side, a slice of a complex phenomenon, which is a position of defence counsel. If to approach to the etymological characteristic of the term «position», the most acceptable can consider its following value:

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1) situation, arrangement; 2) the point of view, opinion on any question. The client should understand his opinion of rather brought accusation as a position of the defender. The position of the lawyer defender not always comes to light in pre-judicial production. And it is frequent this results from the fact that defenders consider the statement of the petition directed on elimination of defects of a consequence, from the point of view of tactics of protection inexpedient. So, in their opinion, the similar petition needs to be declared in court which will consider it more effectively, the investigator results of implementation of such petition will try to neutralize. Nevertheless, making this or that decision, the lawyer defender has to remember that protection has to be a timely and adequate situation, the rights and legitimate interests of the client have to be restored and the quicker – the better, after all his task – to render the qualified legal aid, and is timely. Therefore if nevertheless he comes to a conclusion about groundlessness of charge or its wrong qualification, the position of protection has to be stated in the corresponding petition, the complaint and so that the investigator couldn’t neutralize a consequence. Their position or attitude as charged the Defender can express in accordance with part 2 of art. 345 of the Republic of Kazakhstan, at the beginning of the trial, after the presiding officer will ask the defendant whether he understood the charge, he admits his guilt and whether he or his counsel to express their attitude to the as charged. In trial by jury at a trial lawyer said he agreed with the position of the accused as charged. Therefore, from the point of view of the Defender shall be entitled to a trial to express its position and to trial by jury, he must do it. Before the adoption of the CODE of CRIMINAL PROCEDURE of the Republic of Kazakhstan, it was recognized that the Defender had only their stance in a defensive speech, as the, if he had determined its position immediately after reading the case materials and interviews with the accused, he inevitably throughout the trial vitiated that corresponds to its position and would be missed, leaving aside those favorable to the accused, the circumstances that do not fall into what

Chapter 1

it considered its position right at the beginning of the course, at the beginning of my involvement in the Defender’s understanding of the circumstances of the case, outlines the ways and means of protection, which puts the accused in fame. But that’s not the position of this notion in the direct sense, and the assumptions most likely Defender on the pattern of protection and how it is to be applied. In accordance with the code of criminal procedure of KAZAKHSTAN – this position means that the Defender gives his opinion to as well. Fears that defense attorney, expressing its position at the beginning of my involvement in the case, for example, at the beginning of the investigation, it will follow in the future, leaving aside the circumstances favourable to an accused, that do not fall within its scope, invalid, as it is not associated with her, and his goal remains the same – to identify everything that contributes to the protection of the rights and legitimate interests of the defendant. The position of Ombudsman is formed throughout the legal process and finally determined to safeguard speech. There are following types of positions which the lawyer defender on criminal case can occupy: 1) to challenge charge as a whole, proving innocence of the defendant behind absence in its actions of signs of a crime, in the absence of the event of a crime or behind non-participation of the defendant in it; 2) to challenge charge of the relation of separate episodes; 3) to challenge correctness of qualification, proving need of change of the brought accusation on the article of the Criminal Code of RK attracting softer punishment; 4) to prove smaller degree of guilt and responsibility of the defendant, giving circumstances softening its responsibility; 5) to prove the diminished responsibility of the defendant excluding approach of criminal liability. The choice the lawyer defender of this or that position on business depends not only on the legal requirements shown to its activity. Exist still psychological and moral and ethical dependence of opinion of the defender on the point of view of the suspect (accused).

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The lawyer is a psychological dependence on the defendant’s opinion, because its participation in the process depends on the wishes of the latter. Knowing about the right of a suspect (accused) at any time to refuse legal counsel and considering such a waiver is unacceptable, the Defender can demonstrate commitment to conflict prevention by adapting its position towards the client, requiring from him, by all means make it justified. And such situations are not uncommon. Here everything depends on how the Defender understood its role, its importance and for him by law and ethical requirements. Ethical requirements of defence counsel is that he may not defend unlawful interest of defendant not entitled to lie and dissemble. These and other requirements are derived from the following documents. According to The principles of the ethics of lawyers, the International Bar Association (IBA), approved by the Board of MAO in Edinburgh (Scotland) in the year 1995, lawyers must relate to the interests of its clients as to the most important, subject to fulfilment of obligations before the Court of Justice and the requirements of professional ethical standards; lawyers must maintain a high degree of self autonomy in order to be able to give unbiased advice to clients. According to the rules of lawyer ethics, prepared by the International Union (Commonwealth) lawyers: the legal aid counsel must abide by professional ethics, to promote the best protection of the rights and interests protected by law; in the professional activities of the advocate is independent. Their decision based on the law concerning the means and ways to run errands lawyer takes on its own. Contrary to law clients ‘ requirements cannot be accepted by counsel for follow up. A great influence on the choice of his quarterback position provides professional deformation. It is understood the emergence of specific psychological defence counsel have properties that affect the discharge of its duties. These properties appear as a result of sustained implementation of similar actions, as well as from improper understanding of social importance of their profession. Professional deformation of the lawyer defender is shown in several types: 1 . Indifferent relation to destiny of the client. The lawyer doesn’t

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use all opportunities for protection the rights and legitimate interests of the defendant. 2 . Stereotypic protection. The reason of such phenomenon consists that defenders more carry out affairs of the same categories (hooliganism, theft, a robbery) therefore they develop the same receptions and the methods of protection which aren’t allowing them to react quickly on emergence of new proofs. 3 . The adaptation – the lawyer, without wishing to spoil the relation neither with the prosecutor, nor with court adapts the position for the indictment. It certainly is harmful to the protection of the rights and legitimate interests of the defendant. To prevent professional deformation must not only raise moral and psychological qualities of lawyers, improve professional skills and to develop the necessary psychological quality, positively influencing the implementation of safeguard actions, but above all create conditions that ensure moral and psychological stability and constant cravings for self-improvement, since college. To moral incentives, aimed at preventing professional deformation, are: the quest for Justice and recognition of high significance for the protection of human rights; inspirational work and self-sufficiency, to exercise initiative and activity; satisfaction with the outcome of labour advocated in the case of celebrations of the legal position; approval of colleagues, and the public trustee; IRLA supports conscience can in good say that all legal means and methods of protection were indeed used. As noted earlier, as a matter of law, the Defender shall be entitled to a trial to express its position and to trial by jury, he must do it. You can propose the following algorithm to determine the position of the Defender on top of the trial: 1) familiarity with materials of criminal case; 2) interview with his client; 3) study of the literature and case law. 1. become familiar with the materials of the criminal case to start with studying the judge’s order on the appointment of the hearing;

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the clearly spelt out of the clearly spelt out; order to bring charges, the end of the accused; Ordinance on the election of a preventive measure, and then with a sheet of case No. 1-the decision to institute criminal proceedings, etc., in chronological order. In their study of defense attorney should draw its attention to the key points. First, the decision on the appointment of judges of trial should clarify the point of an article of the criminal law, that it reflects, as there may be clearly spelt out at differences with an or are clearly spelt out. You should also check out a list of persons called to the trial, with a view to the protection of witnesses. Getting acquainted with the materials of the case, counsel, first of all, you need to focus on the procedural rights of a suspect (accused). Secondly, reading the or the are clearly spelt out clearly spelt out, it is necessary to pay attention to the timing of their approval, as well as whether the accusation against his client after their approval. Thirdly, you should check whether the facts set forth in the clearly spelt out, the decision to bring charges. Fourthly, having studied the materials of the criminal case, the Defender decides on the validity of the appointment of the hearing record. Fifthly, counsel should carefully study the testimony his client by making detailed statements of case materials. You must not only know exactly what evidence referred to by the defendant in support of his statements, but also an understanding of how these statements confirmed or invalidated the preliminary investigation materials. In the sixth, getting acquainted with the testimony of victims and witnesses, and to make extracts from them on substantive issues on separate sheets so that the data on the investigation and would be in court together, which would facilitate the work of preparing defensive speech. Seventh, the defender of the expert conclusion determines whether the rights are not violated by the suspect (the accused) in the production of examination. Defense Attorney must review all the evidence in the case, without exception, using the following criteria: I. Vsestoronnost: a) whether there corresponds the version of charge of objective reality in whole or in part? If isn’t present, to note, for what reasons and in what it was expressed, whether it can affect validity of participation of the defendant in commission of crime, as as

Chapter 1

a whole, and in episodes on corresponding (-to it) article (-holes) the Criminal code of RK. And, the most important, as when and under what circumstances it can be used with the greatest effect for protection of the rights and legitimate interests of the defendant; b) whether the version of the client, standard versions of protection, the version about self-accusation, a slander, circumstances of an appearance from the guilty is checked. If isn’t present, the lawyer has to check them during judicial examination, applying thus appropriate means and ways of protection. If check can lead to adverse consequences for the defendant, the lawyer shouldn’t carry out it. It has to use this version in a speech for the defense as follows: the version of protection isn’t disproved during judicial examination, therefore, there are ineradicable doubts in guilt of the person which are interpreted in its advantage. II. Completeness: whether collected enough evidence confirming the version of charges in whole or in part? If not, the Defender must identify themselves, how many and what kind of evidence he needs to collect by appropriate motions when, and in what sequence they say to modify or refute allegations. version If you do not have an objective to collect, if the lawyer does not represent and does not know what the consequences might be evidence, then he is not entitled to collect them during the trial. He said only part of the speech that the prosecution had not presented enough evidence to convict his client, because there are gaps and contradictions that it has not removed that construed in favor of the defendant. III. Impartiality: whether the investigator has gathered not only evidence but the convictions and acquittals. If exculpatory evidence is not collected, the defense attorney has to map out how to fill this gap. Business production of the lawyer which have to contain the following materials is formed of the made records, the x-copied materials of criminal case and so on: a) the copy of the indictment, the indictment or extract from descriptive and rezolyutivny parts of the indictment, the indictment; b) extracts from the resolution of the investigator on charge presentation; c) extracts about implementation of requirements from the

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resolution on purpose of examination if in these documents there are circumstances essential to protection; d) extracts from materials of preliminary investigation (protocols of interrogations accused, victims and witnesses, protocols and other investigative actions, acts of audits, expert opinions, etc., important for business). In production it is necessary to reflect also the list of questions which the lawyer ask to the defendant, experts, witnesses and victims in a court session and the answers received on them; the list of questions which need to be found out at a personal meeting with defendants and marks about result of conversation with the last. 2. Chatting template with his lawyer can give a positive result for the protection of the rights and legitimate interests of the last only if they will install psychological contact. There are three ways of setting: the first is the interest of the defendant in the case, initiate interest to communicate, explain the purpose of communication; the second call to the defendant’s reasoning; the third is to bring the defendant an emotional state, which automatically reduces the block, overcome feelings of apathy and indifference, a sense of duty, is instilled selfconfidence. The main thing for defence counsel to remove psychological disturbance, which prevents the re-establishment of contact. After psychological contact is made, the accused and the defence counsel were beginning to communicate among themselves. The evolving relations between them are of two types: a) business relations as between carriers of certain public functions; b) the personal relations on the basis of sympathy or antipathy. The basic lines defining these relations, serve: 1) the introduction in process and transformation into participants of criminal trial causes certain changes in their psychological processes, properties and conditions; 2) the psychological relations are based on procedural position of the defender and accused; 3) the specific purposes of communication follow from the main task of protection – a justification innocent, mitigations of punishment in the presence of the due bases;

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4) existence of specific interest at communication, i.e. such relation accused and the defender to criminal case which answers their psychological mood, induces to more active implementation of protection. In the course of conversation with the client it is recommended to the lawyer defender: 1) to establish as far as the defendant knows charge and as it concerns him (objects to the brought accusation, pleads guilty, etc.); 2) to explain it point, part, article of the criminal law by which bodies of preliminary investigation were guided, bringing accusation. It is very important to explain to the defendant his procedural situation and those rights with which he is allocated by the criminal procedure law; 3) to make sure, whether there are the proofs disproving charge which aren’t present in case papers; 4) to find out nature of relationship of the client with the victim, with other persons who are also attracted as accused on the real business, with witnesses, experts. This work is necessary because helps the defender to establish degree of objectivity, reliability of proofs of charge. 3 . Criminal procedure literature and the jurisprudence explaining this or that provision of materials of criminal case which is submitted to the defender disputable, not clear or which is necessary for confirmation of the version on business and, respectively, a denial or change of the version of charge is studied. Laws, resolutions of the Supreme Court of RK, etc. are thus studied. Recommended sources 1. Fatherly YU.I., Mirzoyev G. B. Professional duty of the lawyer and his status: monograph. – M, 2001. – 389 pages. 2. Whatman paper D.P. Advocaat in criminal trial. – M, 1976. – 290 pages. 3. Smirnov A.V. Kalinovsky K.B. Criminal trial: the textbook / under a general edition of A.V. Smirnov. 4 prod. reslave. and additional – M., 2008. – 298 pages. Questions for self-checking 1. Types of positions lawyer defender? 2. Professional deformation lawyer defender? 3. During the conversation with the defendant?

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CHAPTER 2 ACTIVITY OF THE LAWYER DEFENDER BY PRODUCTION OF PROCEDURAL AND INVESTIGATIVE ACTIONS 2.1. Activity of the defender by production of procedural and investigative actions

I

nvestigations are the primary means of gathering evidence and therefore deserve special attention. Illegal and unjust they may significantly restrict the constitutional rights of citizens, which should be absolutely excluded. The increased requirement for procedural order of evidence requires careful observance of the provisions of the Act regulating investigative activities. The institute of investigative actions in RK Criminal Procedure Code, despite relative stability, underwent a number of considerable changes. Need of reduction criminally - the procedural legislation in compliance with the Constitution of RK obliged the legislator to provide a judicial order of «authorization» of a number of procedural actions on collecting of proofs. From among investigative actions the detention of the suspect and seizure of property which owing to absence at them to an informative orientation are transferred to the category of measures of procedural coercion are excluded. At the same time such procedural actions are included in system of investigative actions, as verification of indications on a place and seizure of post and cable departures. The order of carrying out a number of the investigative actions changed, some of them gained new features. So, it is conventional that that part of criminal procedure actions of the investigator (investigator) which is directed on collecting of proofs belongs to number of investigative actions. «Under investigative actions, – write N. S. Alekseev, V. G. Dayev, L.D.Kokorev, – the actions regulated by the procedural law which have been directly directed on detection, fixing, verification of proofs» [51 usually are understood, with. 186]. Professor S. A.Sheyfer defines investigative

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actions as a complex regulated by the criminal procedure law and the and carried-out investigator (court) search, informative and certifying operations corresponding to features of traces of a certain look and adapted for effective search, perception and fixing of evidentiary information containing in them. These conclusions completely are confirmed by provisions Criminal Procedure Code RK in which it is provided that collecting of proofs is carried out by production of procedural actions (p.1 by Art. 125 of the Criminal Procedure Code of RK). Thus, investigative actions are procedural actions by means of which proofs are found, checked and fixed. The Criminal Procedure Code of RK gave to the defender additional opportunities of participation in the investigative actions made at a stage of preliminary investigation, and also in details regulates its rights with participation in the specified actions. A defender, taking part in investigative actions, within the framework of legal assistance for his client to give him in the presence of the investigator’s summary advice, ask permission from the investigator’s questions, persons being interrogated to give written comments regarding the correctness and completeness of the records in the record of the investigation. The investigator may withdraw the Defender, but you must put them in the record of the investigation. Investigative actions the defender has to be informed on carrying out in advance. Jurisprudence admits rough violation of the criminal procedure law the facts of not notice of the defender about planned investigative actions contrary to statements (requests) for it the lawyer. The participation of defence counsel in the pre-trial investigation stage of criminal proceedings an adversarial process reinforces that it creates the conditions to ensure the comprehensiveness, turns and is one of the safeguards against bias, use of «methods of investigation. Part in investigative actions allows you to directly perceive the defender received as a result of these actions, evidence, evaluate its relevance, credibility and words or, if it cannot do so immediately, outline ways to test them further. By participating in the conduct of investigative actions, the Defender receives more information on the evidence available to the investigation.

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In the original version of the CODE of CRIMINAL PROCEDURE regulates the right of counsel were not involved in the investigation during a preliminary investigation. I would like to elaborate on the details of the participation of defence counsel in investigative actions, most often mass-produced at the production stage of investigation in the case. The participation of defence counsel in carrying out investigation experiment. Article 239 of the CODE of CRIMINAL PROCEDURE provides for the possibility for the investigator, in order to verify and refine the information that is relevant to a criminal case, an investigative experiment by playing certain actions, the situation, the circumstances of the event and conduct experiment. This tests the perception, any facts, conduct offensive, some event, and also identifies the sequence of events that occurred and the formation mechanism of traces. The meaning of this principle should be that the reconstruction could be made only in order to test and refine the existing investigator of any data which become known to him from specific sources of evidence in the criminal case. So it turns out that an investigator from specific sources of evidence should have information on what concrete action, in what circumstances and under what circumstances a crime was committed, namely, an investigator before the investigation experiment must have information about the place, time and manner of Commission of the offence. Thus, based on the rule of law by conducting investigation experiment, the investigator should examine evidence already collected in the case. In our view, this approach to determining the relevance of the investigative experiment, as one of the means of proof in a criminal case, significantly understates his role in criminal proceedings, since the examining experiment can be successfully applied not only to test and refine the already existing evidence, but also to verify, for example, other versions are on the case, as well as to receive new evidence. Investigative experiment is an independent investigative action, therefore – an independent source of proofs. Therefore if to proceed from sense article 115 Criminal Procedure Code RK which means any

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data on the basis of which court, the prosecutor, the investigator, the investigator in an order determined by the Criminal Procedure Code of RK, establishes existence or absence of the circumstances which are subject to proof by production on criminal case, and also other circumstances important for criminal case by the proof, it turns out that establishment of such circumstances is an overall objective of all investigative actions, including investigative experiment. Therefore the law won’t be broken if investigative experiment is made not for the purpose of check and specification already collected in the matter of proofs, and with other purpose which will serve establishment of any other circumstance important for criminal case including for a denial of the arisen suspicions in the relation of the particular person in commission of crime or denials of already brought accusation. In the pre-trial stage of criminal proceedings the defence can be a member of the investigative experiment if the investigative action is carried out with the participation of the suspect or the accused. In all other cases the defence requirements under art. 275 CCP RK or already in trial stages of criminal proceedings has the right to verify the Justice concerning legality of the registration authorities and procedure of investigation investigation experiment and define its position on the permissibility of Protocol investigation experiment as evidence in the case. If the party has set itself the goal of protection by carrying out investigation experiment, which, when completed, will be the registration procedure and evidence in the case, check the testimony of the suspect or the accused, i.e. by the proofs check out another, it should be borne in mind that reconstruction will have a positive result only if the suspect or the accused in his testimony will describe in detail the circumstances and terms and conditionsin which the event occurred, namely, specific location, it will show the time, weather conditions, lighting, furnishing, items that were on this site. The defence should remember that the testimony of a suspect or an accused in this part must be checked before the investigator investigation experiment by comparative analysis, by examining other materials of the criminal case, for example, the Protocol inspection

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protocol, search scene, testimony of victims, witnesses, etc., since these protocols will be a source of information for the investigator on the conditions and environment of verifiable fact, certain specific actions. How would an investigator tried to approach conditions and environments of the investigative experiment to real conditions and environment previously occurred event, reconstruction will always be the artificial reproduction of the circumstances of this event, because it is not accurately reproduce the actions of persons who have been taken earlier. Based on the foregoing, it can be concluded that the assessment by the defence Protocol investigation experiment for its authenticity and words as evidence in the case must include: 1) checking the conditions in which the pilot, through comparative investigation experiment protocol analysis with other evidence in the case, describing the conditions in which the validated event occurred; 2) the examination of the reliability of the results of the experiment; 3) a comparison of the results of the experiment with other evidence in the case; 4) the correctness of the Protocol of the experiment. In conclusion it should be said that the law on criminal procedure permits the production of an investigative experiment if and only if it does not create a risk to the health of persons involved. In such cases, the responsibility for carrying out investigation experiment entirely Christian on the top investigator. The participation of defence counsel in the end of the suspect or the accused. The questioning of the suspect (the accused) may precede the visit him private and confidential counsel. at this meeting the well-produced defence that largely determines the defendant’s testimony explaining his rights.,article 74 of the CODE of CRIMINAL PROCEDURE gives the defender who is involved in the production of investigative actions (including the end of a suspect or accused person), within the framework of legal assistance for his client to give him in the presence of an investigator, brief legal advice.

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Will make some observations on the content of those consultations. This can be clarified his clients rights, if they are not completely or not clearly explained by the investigator,or they arose during the investigation it appears that counsel may recommend the defendant exercise his right not to answer questions by investigators (article 68 of the CODE of CRIMINAL PROCEDURE, 69); require participation in the processing of an end if the person questioned bad speak the language of the questioning; not to testify during the night in the absence of exceptional circumstances. When other investigations are conducted with the participation of the suspect or the accused (for example: presentation for identification, verification of evidence, investigative experiment), it is necessary to clarify the essence of their client, appointment, procedure and the rights of the defendant. However, in the course of the investigation the Defender does not have the authority to directly advise the person questioned to give evidence about how to respond to any questions the investigator. During his end, the Defender may put questions to the defendant with the permission of the investigator, to besent tosto determine the circumstances of the defendant’s non-involvement in the crime, criminality and punishability is of an act preventing, mitigating penalties. the investigator is entitled to withdraw the defence counsel, but must be reserved in the Protocol questions. Finally, defence counsel may make written comments about the correctness and completeness of the records of testimony the defendant in an end of report. The participation of defence counsel in the production of confrontation between his client and the other previously interrogated individuals. On the basis of article 220 of the CODE of CRIMINAL PROCEDURE,if confronted in the testimony of two previously interviewed persons, there are significant at differences, and seek to resolve these contradictions or find out their causes.

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Two options are possible: a) when the confrontation is carried out at the initiative of the investigator between the victim or the witness which indications confirm charge, and the suspect (accused) to convict the last of commission of crime; b) when the specified investigative action is carried out according to the petition of the suspect (accused) or the defender and is directed on disproving rendering the victim or the witness, doubtful protection from the point of view. In both cases the defender within the rights and powers has to take all possible measures to check of relevancy, an admissibility and reliability of indications of the victim or the witness by clarification of the circumstances relating to formation of such indications (to perception of events, storing of data on them and reproduction of these data on interrogation). If during interrogation there is no opportunity completely to check indications of the victim or the witness, the defender has to plan how such check can be made in the course of the further investigation, what investigative actions for this purpose it is necessary to make, prepare the corresponding petitions or most to interrogate new faces, to request documents, etc. (Art. 74, 125 of the Criminal Procedure Code of RK). Participate in the questioning of a witness at the request of defence counsel or the defendant. The right to participate in the interview granted to the defender of the article 74. According to article 68,69 of the RK in the end of the suspect or accused may be involved. For example, this could be the questioning of the witness, who said the Defender can confirm any circumstances, evidence in favor of a defendant, shall we say, a reference to his alibi. The Defender should be wary of requests for statement of questioning witnesses, not to get the result back, when a witness gives evidence or give testimony expected, adverse to the defendant. For this purpose you can use the preliminary survey of the alleged witness. The role of counsel in such questioning is that by raising appropriate

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questions to ask the person, on any of the above circumstances, it could indicate what are based his evidence than you can confirm them. It should be noted that the Ombudsman does not have a duty to enforce the law in the investigative actions; it is following this only to the extent that security interests require a suspect or accused for the Justice concerning legality of investigative actions are those officials that their useful Defender are sometimes not react immediately on the violations of the law, no matter how to notice themthen,in the Court of,disavow the evidence gathered, to demand recognition of their unacceptable. such a tactical trick can sometimes prove useful for protection. But there is another side to the Defender. «who says» violations of the law, the risk that the breach would not be considered significant, and the evidence gathered will serve as the basis for judgments of conviction. «Then counsel applied tricks» will turn against him, but rather against his client. because such techniques should be very careful. During production of investigative actions the defender has to provide identification of all facts of the case favorable for the client. In this regard the point of view of S. D. Ignatov who considers a ban the lawyer to lead the client during production of investigative action «quite disputable» is interesting and quite allows such step from the lawyer if that is confident in the answer of the client that that won’t make to itself(himself) worse. Otherwise, in his opinion, the lawyer in general it is necessary to refuse the right to ask questions. The point of view of I.E.Milova that participation of the defender in investigative actions not only, as a rule, is positively reflected in ensuring the rights and interests of the client deserves and leads to establishment of the circumstances acquitting the suspect, accused or extenuating their fault, but also at the same time participation of the defender in investigative actions are predetermined as though by objectivity and reliability received thus from accused information. In case of attempt of the client further to change indications, data in the presence of the lawyer defender, the court will surely pay attention that the defender participated in interrogation. It creates difficulties in contest of earlier obtained data and upholding by the defendant and

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his defender of other position. At everything thus the lawyer defender is obliged to take necessary measures to protection of the identity of the client, not to allow rendering on it psychological or physical pressure. From the aforesaid it is possible to draw the following conclusions: 1) collecting of proofs is carried out by production of investigative actions (Art. 125 of the Criminal Procedure Code of RK). Thus, investigative actions are procedural actions by means of which proofs are found, checked and fixed; 2) according to Art. 74 of the Criminal Procedure Code of RK during preliminary investigation the defender has the right: to be present at presentation to the client of charge; to participate in interrogation of the suspect accused, and also of other investigative actions made with participation of the suspect, accused either according to his petition or according to the petition of the defender; 3) the defender participating in production of investigative actions, within rendering a legal aid to the client has the right to give it in the presence of the investigator short consultations, to ask with the permission of the investigator questions to interrogated persons, to give written remarks concerning correctness and completeness of entries in the protocol of this investigative action. The investigator can take away questions of the defender, but is obliged to enter the takenaway questions in the protocol; 4) the defender has to be informed on the forthcoming investigative actions in advance. Jurisprudence admits rough violation of the criminal procedure law the facts of not notice of the defender about planned investigative actions contrary to statements (requests) for it the lawyer; 5) participation in investigative actions allows the defender to apprehend directly the evidence obtained as a result of these actions, to estimate their relevancy, an admissibility and reliability or, at impossibility to make it at once, to plan ways of their check further. At last, participating in the listed above investigative actions, the defender receives additional information on proofs which the consequence has; 6) if directly on interrogation completely to check indications of the victim or the witness it is impossible, the defender has to plan how

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such check can be made in the course of the further investigation, what investigative actions for this purpose need to be made. To prepare the corresponding petitions or most to interrogate new faces, to request documents, etc. according to Art. 74, 125 of the Criminal Procedure Code of RK; 7) participation of the defender in investigative actions not only, as a rule, is positively reflected in ensuring the rights and interests of the client and leads to establishment of the circumstances acquitting the suspect, accused or extenuating their fault, but also at the same time participation of the defender in investigative actions are predetermined as though by objectivity and reliability received thus from accused information. Recommended sources 1. Ignatov S. D. Advokatskaya activity and problems of its improvement in the conditions of judicial and legal reform. – Izhevsk, 2000. – 304 pages. 2. Milova I.E. Participation of the lawyer defender in collecting of proofs: – Samara, 1998. – 167 pages. Questions for self-checking 1. That such an investigative experiment? 2. Interrogation of the suspect (accused)? 3. Role of protector of the interrogation?

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2.2. Activity of the lawyer defender at permission of questions of application of measures of restraint

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ccording to provisions of the criminal procedure legislation of the Republic of Kazakhstan (Art. 143, 150 of the Criminal Procedure Code of RK) the order of permission of questions of the conclusion of accused (suspect) under guards or house arrest, about extension of terms of detention or under house arrest radically changed. Let’s remind that on not so long ago these issues were resolved by the prosecutor individually, and the defender of the objections couldn’t declare. The only thing that was provided earlier – a duty of the prosecutor in necessary cases before decision-making personally to interrogate suspected or accused, and the minor – in all cases. But such interrogation couldn’t replace, certainly, participation in this procedural action of the qualified defender – the lawyer who could state the motivated objections based on the law against arrest of accused (suspect) or extension of term of the contents it under guards or under house arrest. According to RK Criminal Procedure Code the resolution on initiation of the petition on election as a measure of restraint of imprisonment is subject to consideration individually the judge of district court or military court of an appropriate level with obligatory participation of the suspect or accused, the prosecutor, the defender if the last participates in criminal case, on place of production of preliminary investigation or a place of detention of the suspect within 8 hours from the moment of receipt of materials in court. The suspect detained in an order, established by article 134 Criminal Procedure Code RK, is delivered in a court session. The lawful representative of the minor suspect has the right to participate in a court session or accused, the head of investigative body, the investigator, the investigator also. Absence without valid excuse the parties which have been in due time informed on time of a court session, isn’t an obstacle for petition consideration, except for cases of absence accused. The rule of the CCP allows a defender to present its case against the suspect (the accused) and request the application of the more lenient measure.

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Naturally, this arrangement gives the Defender far more opportunities to State and justify their objections to a defendant in custody or under house arrest and prolonged detention or under house arrest. What objection can lead defender and how to justify? To answer this question, it is necessary to consider the statutory grounds for detention an accused person or a suspect in custody or under house arrest. First, on the grounds that relate to possible attempts by the suspect (the accused) to prevent the investigation of a crime or continue criminal activity. According to art. 139, 142 of the CODE of CRIMINAL PROCEDURE, one of the preventive measures stipulated by law may be ordered for the suspect (the accused) if there are reasonable grounds for believing that he would flee from the initial inquiry or pretrial investigation or the Court, or to prevent the objective investigation and proceedings before a court, or will continue to engage in criminal activities, as well as for the execution, the body directing criminal proceedings within their authority shall have the right to apply to this person one of the preventive measuresunder article 140 of the CODE of CRIMINAL PROCEDURE. In relation to measures such as preventive detention or under house arrest, called for two more special conditions (article 150 of the CODE of CRIMINAL PROCEDURE). Such measures may be applied: a) if for a crime of which the person is accused or suspected, the criminal law provided punishment in the form of imprisonment for the term of not less than two years, and the minor is accused or suspected of commission of heavy or especially serious crime (Art. 150 of the Criminal Procedure Code of RK provides possibility of application of in exceptional cases specified measures of restraint to the persons accused or suspected of commission of crimes of smaller weight); b) at impossibility of application of other, softer measure of restraint. In aspect of a considered problem the second condition means that

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the specified purposes – to prevent attempts of the suspect (accused) to prevent implementation of legal proceedings or to continue to be engaged in criminal activity – can’t be reached without the conclusion it under guards or under house arrest. According to Art. 150 of the Criminal Procedure Code of RK, in the resolution brought into court on initiation of the petition on the conclusion of the suspect (accused) under guards or under house arrest motives and the bases owing to which there was a need for application of such measure of restraint have to be stated and election other is impossible. Materials investigative and judicial practice of the Republic of Kazakhstan testifies that at the first stages of action of the Criminal Procedure Code of RK or under house arrest (as well as about extension of term of detention or under house arrest) the specified bases weren’t given in many petitions for imprisonment; investigators, investigators, prosecutors were limited only to the general statement that the suspect (accused), for example, can disappear. Such formulation at all doesn’t conform to law requirements (to the Art. 139 Criminal Procedure Code of RK) which says that a measure of restraint can be chosen accused or to the suspect in the presence of the sufficient bases to believe that he will disappear (instead of can disappear). Almost any suspect (accused) can disappear and assume it possibly in all cases. On sense of the law it is necessary to prove not opportunity to abscond and vessels, and existence of the bases to believe that it will take place. Moreover, the fear that the person will disappear from inquiry, preliminary investigation or court, as well as two other bases for election the measures of restraint specified in Art. 139 of the Criminal Procedure Code of RK, provide the right (it is right, instead of a duty) to choose one of the measures provided by Art. 140 of the Criminal Procedure Code of RK, but detention or house arrest isn’t obligatory. For application of imprisonment or house arrest there isn’t enough link to Art. 135 of the Criminal Procedure Code of KR, and it is necessary to prove impossibility of election of other measure of restraint. It is believed that, given the wording of article 141 of the CODE of CRIMINAL PROCEDURE, which provides the basis for applying

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preventive measures as detention and home arrest is quite a together opinion of the investigator or person conducting the initial inquiry, for fear that the person will somehow interfere with the judicial process, and that proof of such intention impossible but this is contrary to the above requirement of the CODE of CRIMINAL PROCEDURE, art. 150, the lead investigator in the application binding motifs and groundswhich necessitated the closing of the suspect (the accused) are in custody or house arrest and cannot beSt election(I) a preventive measure. You must substantiate the assumptions referred to in art. 139 of the CODE of CRIMINAL PROCEDURE, for example, there is evidence in the case in which the prosecution is based mainly on the testimony of the few witnesses or victims, and the person is suspected of an aggressive assault against the person (murder, robbery, rape, extortion, etc.). Here is especially great temptation by affecting the victim or witness of crime to change testimony and thus avoid liability. The most critical situation is created where the suspect (the accused), denying any involvement in the crime, has data that could indicate the validity of his statements and refute the charges. So, if a suspect invokes the alibi and has concrete evidence supporting this link, and the municipal petition could not provide information about the that suspect checked and refuted, the Defender shall specify that the alibi is uncontested absolute grounds for denial of a request for arrest. So much so that the validation check on alibis, typically do not allow deposits to substantiate or disprove, since his data over time may be lost or checking them is difficult. RK Criminal Procedure Code in article 150 provides as the judge in similar cases can arrive. Along with decisions on election of a measure of restraint in the form of imprisonment or house arrest or about refusal in satisfaction of the petition, the judge has the right to postpone decision-making no more than at 72 o’clock. In the initial text of this norm it was specified that such decision can be made according to the party petition for submission of additional proofs of validity of detention by it. Such decision can be passed according to the petition of one of the parties for submission by it of additional proofs of

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validity or groundlessness of election of a measure of restraint in the form of imprisonment or house arrest. Thus, if on sense of this norm in former edition the petition for adjournment of decision-making could declare only the face which has raised the petition for arrest, now, being guided by article 150, RK Criminal Procedure Code the party of protection can petition before the judge for decision-making adjournment on the substance of considered materials for submission of the proofs proving expediency of election of other, softer, a measure of restraint. If during the investigation there is a doubt in legality and validity of the requirement about arrest, charge has to compensate for the deficiency the bases for this purpose. But how to arrive when in the presence of such doubt (and it can be caused and objections of the defender) charge of the petition for adjournment of decisionmaking doesn’t declare? As a rule, the defender should object to making decision on arrest, referring to absence to it the bases. But if the result is unpredictable, and protection has an opportunity to submit the additional data testifying against application of a measure of restraint in the form of imprisonment or house arrest, would be, in our opinion wrong, not to use possibility of adjournment of acceptance by the judge of the decision and submission of such data. Naturally, the judge raised the question, and really there for a limited time, calculated by eight hours, giving the suspect (the accused) and their lawyers the opportunity to become familiar with these materials. As the investigation and litigation materials, often in court are petitions on election security measure for an hour, half hour, or even for 20 mins. before the end of the 72 hours, as stipulated by the Constitution of KAZAKHSTAN to address the issue of electing the suspect (the accused) in cases provided for by the law of criminal procedure, remand in custody as a preventive measure. Given the evolving situation objectively, and courts must ensure familiarization with the above-mentioned materials in a reasonable period of time, but within the statutory period of detention and court time allotted for the consideration of the motion to elect suspected preventive measures in the form of detention or remand in custody.

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There is no doubt that getting counsel from those materials will help him determine his position on the motion of defendant in custody or house arrest and make valid comments on it. And, finally, one more question. According to article 141 of the CODE of CRIMINAL PROCEDURE for the election of a preventive measure, including, in the form of detention or house arrest, along with other circumstances, account shall be taken of the gravity of the charges, which is reflected in the Crufts qualification of the alleged charges. of course, as a preventive measure shall be elected in respect of the suspected offence, is determined by the result only preliminary. in the case of an accused, the legal assessment of the alleged crimes should be more accurate now. should the Court to verify and assess the reasonableness of the claims in the application of the that the person is suspected or accused of committing crimes of a certain seriousness? This issue is particularly acute with the remand of the accused. In accordance with art. 153 of the CODE of CRIMINAL PROCEDURE further detention or house arrest in the preliminary investigation of more than 6 months are permitted only against persons accused of committing serious or particularly serious offences. In the same way is limited to the extension of remand in custody or under house arrest for the defendants during the trial. How to proceed in such cases, if the accused person or defendant Crufts qualification as described in the decreeing of the or the are clearly spelt out clearly spelt out and the statement of the charges by the public prosecutor in accordance with art. 345 of the CODE of CRIMINAL PROCEDURE (without re-evaluation of the evidence for the prosecution), the qualifications of these actions as a serious or particularly serious crime, in the opinion of the defence, to be unreasonable? Whether counsel has the right to express their doubts in determining further remand in custody or under house arrest, and whether the Court should consider the application of protection? In our view, this question can be answered in the affirmative. The decision to prolong detention or under house arrest, based on dubious circumstances, cannot be recognized as legitimate and justified.

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Particular attention should be paid to the existence of the offence attributed to the actions of the defendant. The Court cannot ignore the question of whether the offence in the actions for which the prosecution believes it is necessary to arrest the accused. Therefore, the apparent absence of counsel should pay attention to this Court. You must also check whether there are any grounds for exclusion of the defendant from criminal liability, such as, for example, expiry of statute of limitations, the decriminalization of acts previously considered a crime, etc. the above-mentioned circumstances may not be 6 when determining eligibility for any other measure under the CODE of CRIMINAL PROCEDURE of the Republic of Kazakhstan. As a preventive measure can be selected. The Pledge shall be a suspect or an accused or other person or entity to the depositary account authority, chose the measure, money, securities or assets in order to ensure the turnout to the investigator, the investigator or the Court of the suspect (the accused) and the prevention of new crimes. The type and amount of deposit is determined by the court taking into account the nature of the crime committed, the identity of the suspect (the accused) and property status of the pledgor. Bail as a preventive measure chosen with regard to the suspect or accused by a court decision in accordance with article 148 of the CODE of CRIMINAL PROCEDURE. Bail may be elected at any time during the criminal proceedings. If the bond is used instead of the previously selected actions in pre-trial detention or house arrest, the suspect or the accused remains in custody or house arrest prior to the Court’s deposit account deposit, which was defined by the Court, have chosen to follow this measure of restraint. Acceptance of collateral shall be drawn up, a copy of which is handed to the pledgor. If the deposit is made by someone who is not a suspect, an accused person, he explains the essence of suspicion, accusation, which is elected by this measure, as well as related commitments and the consequences of non-compliance or violations. In the event of non-compliance or violation of the suspect (the accused) creditors associated with the collateral pledge in favor of

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the State be a judicial decision in accordance with article 161 of the CODE of CRIMINAL PROCEDURE. In other cases, the Court in sentencing, as well as definitions, ruling on termination of the criminal case will decide on return of pledge the pledgor. Upon termination of the criminal proceedings by a Prosecutor, investigator, the deposit is returned by the pledgor, as indicated in the ruling on termination of the criminal case. Questions for self-checking 1. What are the conditions provided for by 150 of the CODE of CRIMINAL PROCEDURE? 2. As a preventive measure which can choose bail?

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2.3. Activities of the defender for proof on preliminary investigation

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roclaiming the right to qualified legal assistance, the Constitution of the Republic of Kazakhstan establishes the principle of the right of citizens to professional protection of the freedoms and legal interests, including the right to be protected from criminal prosecution (ch. 2, art. 13). As a professional advocate lawyer is involved. With the participation of the lawyer in criminal trial as an advocate, in addition to the protection of the suspect (the accused) may exercise his spouse, close relative or guardian, trustee or representative of the Organization, in the care of the dependants or the suspect (the accused). Foreign lawyers are permitted to participate in the case as counsel if provided for by an international treaty of the Republic of Kazakhstan with the State concerned, on a reciprocal basis, in accordance with the procedure determined by legislation (h. 2 article 70 of the code of criminal procedure). Professional protection in criminal matters is carried out only by lawyers. Professional protection is a form of protection in criminal cases. It has all the signs of a typical protection (p. 19 of the CODE of CRIMINAL PROCEDURE, art. 7), but at the same time, it has a number of features relating to the legal status of lawyer and governed by the law of the Republic of Kazakhstan «about lawyer activity. Such features include the independence of the lawyer professional norms of behaviour of the lawyer, Attorney, law guarantees confidentiality, disciplinary responsibility of members of the bar, etc. Thus, professional protection is the procedural activities of the lawyer carried out only on the basis of the criminal and procedural legislation, the ways and means with a view to providing qualified legal assistance, a crucial part of which is to ensure the protection of the rights and interests of the suspect (the accused) rebuttal of the charges or mitigating action, rehabilitation of persons wrongly subjected to criminal prosecution.

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Need to use a professional advocate (lawyer) is called the complexities of criminal procedure and the legal consequences are irreparable, which may arise in the course of criminal procedure when solving many legal issues. Failure to comply with a fundamental constitutional principle in the administration of Justice is considered a material breach of the rules of criminal procedure, which entails the abolition of any decisions by State bodies and officials, if it limits the right of an accused person or suspect to defence. Society and the State are interested that no citizen was arbitrarily prosecuted or convicted. State, fulfilling a constitutional guarantee of the right to defence, lawyer-lawyer provides extensive rights, including guarantees of his legal activity. The legal basis for the defence in criminal proceedings is the pinning of the Defender’s powers in the Republic of Kazakhstan, as well as the rights and obligations of counsel in the law of the Republic of Kazakhstan «about lawyer activity, not all procedural provisions which are included in the CODE of CRIMINAL PROCEDURE of the Republic of Kazakhstan. Thus, according to article 3. 14 of the law «on the legal profession» lawyer granted the following rights: 1) request in all government bodies and non-governmental organizations the information necessary for the exercise of the legal profession; 2) to collect the evidence required for legal aid, and to present evidence; 3) to get acquainted with the materials relating to persons applying for assistance, including procedural documents, investigations and court cases and record information by any means not prohibited by legislation; 4) seek professional expertise on a contractual basis to clarify questions arising in connection with legal aid and require expertise in science, technology, art and other fields of activity; 5) to file petitions; 6) to acquaint themselves with the information constituting State

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secrets, as well as information containing military, commercial, utility and other secret protected by law if this is necessary for the protection or representation of an inquiry, preliminary investigation and in court, in the manner prescribed by legal acts; 7) use all means not prohibited by law and ways of protecting the rights and legitimate interests of the person applying for legal aid; 8) perform other acts not contradicting to the legislation. One of the most there in science of criminal procedure is compulsory participation in proof. This indicates that «the General obligation to protect the interests of the accused (represented), the lawyer is not the same as the duty of proof lying on the Court investigator. The responsibility to protect can be realized and no evidence of any positive facts: sometimes enough to question the grounds for prosecution. You can talk, so the lawyer responsibility to participate in evidence, but not the responsibility of proof. According to S. N. Gavrilova, the lawyer cannot be held as evidence, but in the meantime, the author writes that «taking over defence counsel simultaneously become subject to certain procedural obligations, did not perform that he cannot». That lawyers acting in criminal proceedings, the protection function, the looking of the Parties shall not bear responsibility of proof, but rather must participate to prove the following authors, writing: «the duty to proof is necessary for the lawyer to participate actively in the research evidence in their assessment, to use for the benefit of the accused, the victim, all legal ways and means for the comprehensive, complete and objective clarification». At first glance, it is very difficult to catch the difference in the content of the concept of «burden of proof» and «evidence» to attend. However, the burden of proof implies pretty hard action algorithm, meaning that it must be the evidence to its logical conclusion, not having the right, in its sole discretion, to terminate her. Another thing – proving, which is essentially the work of others. In this case, is quite possible and allow voluntary renunciation of such participation. However, counsel is not entitled to renounce the protection

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function (part 5 of article 70, paragraph 5 of article 15 of the law «on advocacy»). This means that the lawyer, entered into the investigation of the criminal case should provide protection to its final resolution. This is true with respect to the participation of the proof. But in evidence can hardly be associated with a passive presence during the preliminary investigation by the procedural and investigative actions. Participation in the activities of a lawyer suggests evidence of active cognitive actions aimed primarily at finding and fixing details of the procedural nature of the events, their study and analysis, as well as the effective use to the full the rights, freedoms and lawful interests of the principal in accordance with part 1 article 74CODE OF THE RKthe Defender shall use all legitimate means and methods of protection in order to identify appropriate to refute the accusation or mitigating the suspect (the accused) and to provide them with the necessary legal assistance. Participation of the lawyer in the proof must include its active efforts to establish the facts of the case. Otherwise counsel simply will not be able to carry out its function of protection. The lawyer should be the responsibility of the legal burden of proof in criminal proceedings, particularly in the pre-trial stages of the process. If there is a legal duty to protect, it is an important part of the burden of proof should have a normative expression. Otherwise it makes no sense to speak of the adversary system, under which the parties are given the opportunity to actively defend their or protected (by) the rights and interests. In addition, the absence of a legal obligation of proof clearly not conducive to active collecting evidence and counsel is all the more justification for using their findings to protect the suspect (the accused). In our view, it is necessary to recognize a fair assertion that the lawyer is obliged to rationalize, prove your thesis, and this justification should be supported in the case file, in the evidence (or gaps) that he analyzes and evaluates as an obligation of proof. The burden of proof shall be for the lawyer regulatory measure, rule of conduct in the collection, study and use of evidence in a criminal

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case. Only if there is such a duty lawyer will refrain from passive protection for his client. The existence of this obligation can result in greater participation in proof of other participants in the criminal process, including an investigator. In our view, should reflect this responsibility in a separate article of the RK and stating it as follows: «the lawyer who took over the defense of his client, has no right to refuse it. The lawyer is obliged to perform any activity not prohibited by law to establish the facts of the case favorably affecting the rights, freedoms and lawful interests of the principal. Speaking about the main directions of the evidence of the defence counsel, should agree with the authors who believe that the Defender has two options, two ways of proving unfounded accusations against the defendant; a) to disavow, discredit the proofs based on charge; to prove that they have to be estimated by court as irrelevant, inadmissible, doubtful or insufficient in aggregate for the conviction resolution; b) to submit the new proofs disproving charge during preliminary investigation and judicial proceedings. It should be noted that the specified two ways are applied not separately, not consistently one by one, and in a complex. So that to prove unauthenticity of this or that proof based on charge, submission of the new proofs disproving specified can be necessary. Meaning this reservation, we will consider each of the called ways in more detail. At implementation of protection and, in particular, when collecting proofs the lawyer has to observe the principles connected, first of all with requirements of the moral relation to the client. For example, a lawyer may not divulge, including by providing any information to the investigator of the factual circumstances of criminal proceedings without the permission of the principal. Advocate secrecy, in accordance with paragraph 1. 18 of the law of the Republic of Kazakhstan «about lawyer activity, make up the fact to counsel, information about the content of the written and oral negotiations with the inscription requesting assistance to person, and others, about the nature and results of the actions undertaken in the interests of the person applying for assistance, as well as other information relating

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to the provision of legal aid. Thus, in proving the contents of lawyer secret, you must include any evidence gained from a lawyer from his client or other persons, as well as from other sources. Protecting, the lawyer is obliged to actively and aggressively pursue all legal measures and ways to prove favorable to the defendant’s legal facts. It can act as an enabling any facts confirming the position of the defence and to prove the defendant’s positive image, including in situations of criminal nature of the event. It should be noted that the moral obligation of counsel, which should include, as part of his duties, is the requirement of proof of protection without using unfair methods against a proof in Hoth of preliminary investigation, including the prosecution. Law and morality of lawyer should be above someone’s interests together, including the defendant. Participating in proof, the lawyer has no right to violate standard and moral rules of behavior. «Carrying out proof, – fairly marks out L.D.Kokorev, – the lawyer has to use only legitimate interests of the personality as only they are protected and protected in criminal trial». Determining the line of Defense, the lawyer should not lose their procedural autonomy, to be dependent only on the wishes of his client. «As a professional, a defender, he must determine which circumstances must be unconditional proof, and how they should be set. It is clear that the lawyer should take into account the wishes of the principal and maximize their discharge, but should determine the scope and limits of proof in its sole discretion in accordance with the law and their own «IRLA supports conscience. Article 23 of the CODE of CRIMINAL PROCEDURE, in conjunction with article 7 of the 11 percentage points of KAZAKHSTAN are predominantly adversarial cases in court. With this principle, attaches the greatest importance to respect for the full rights and freedoms involved in the judicial process, for which the prosecution and defence parties have equal procedural rights. The Court has a duty to establish the necessary parties and equal conditions for research evidence.

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In the proceedings the existence of equal rights of the parties to prove is realized through the presentation of evidence and the parties ‘ participation in the study of evidence. Side protection shall have the right to search for evidence that logically is supplemented by the law on Petitions the Court to study and the right to participate in such a study. Search for evidence statement before the court, motions for their study and participation in the study is the parties and procedural control procedures research and action on the admission of the evidence in the case, that is, their permissibility, fall within the exclusive competence of the Court. Another reason for the participation of defence counsel in criminal proceedings, the evidence was viewed differently in relation to pretrial and trial court proceedings, is to change the practical relevance of individual structural elements of proof in criminal procedure, depending on the stage of criminal proceedings. If during the preliminary investigation, the most significant is the formation of evidence at a trial, it is the study and judgment of a judicial sentence to score all their evidence, sources, methods to obtain and use. However, the Foundation must be laid for adversary proceedings and pre-trial stages of production when formed the bulk of the evidence. The Equality of parties before the Court should be provided with adequate evidence, respectively, prosecutorial and acquittal, otherwise the real security of article 23 of the CODE of CRIMINAL PROCEDURE is not possible. Thus, a special study of the subject matter on the activities of the Ombudsman for the collection of evidence in the pre-trial proceedings. Pre-trial work is a complex system of legal relations and virtually all of them have one or more of the circumstances to be very reliable, i.e. legal establishment. Give it completely at the mercy of the adversary process only one side should not be because the protection of the rights, freedoms and legitimate interests of any person involved in this relationship, is no less important than establishing the truth in the case. Therefore, the legislator should strive to consistently provide the rights and legitimate interests of any person involved in the sphere of criminal law, and this must not only be associated with the presence

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of officially formulated a suspicion or accusation of a crime. Each personality, somehow taking part in not only production, but also any investigative proceedings must feel secure protection of the law. This is facilitated by the increasingly active participation in any legal proof of the facts of professional counsel. The basis for participation in the process of proving not only acquainted with materials of proceedings, but with the help of activism in the acquisition of knowledge is the principle of adversarial proceedings. It should be recognized that this principle is fully implemented only at the trial stage, during the preliminary investigation, we only deal with some elements of the adversarial system. This it creates a conflict of activities of the authorities responsible for criminal prosecution on the one hand, they have a feature that would identify the culprits, as well as the duty to ensure and guarantee the full and objective investigation and protection of the interests of participants in criminal proceedings, including those in respect of which the prosecution is done. rather complicated is the responsibility of the investigator, the investigator and Prosecutor. due to their psychological characteristics of personality of multiple functions: function, complete and objective investigation of the function of criminal prosecution and defence functions with the general prohibition to hold these functions on one person or body – is problematic. It is this conflict leads to the introduction of the institution of Ombudsman in the earliest stages of prosecution, as well as expansion of judicial control by a pre-trial proceeding regarding enforcement affecting the constitutional rights of citizens. Therefore, it is difficult not to agree with Makarova Z.V., which specifies: «the legal profession, on the one hand, to protect, to represent private interests-the interests of the individual and citizen, as well as protection of rights, freedoms and legitimate interests of citizens is a public official, and even for the whole of society and the State. Counsel partly takes over the observance and protection of human rights and freedoms, that is the responsibility of the State. Protecting the legitimate interests of private attorneys simultaneously protect public and State interests «. In other words the adversarial advocate, manifesting itself in full

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only in the trial, is at the stage of preliminary investigation. You specify limited in practice with a full and detailed legislation on the provision of legal counsel from the moment of the commencement of criminal proceedings. Most citizens have no lawyer to constantly exercised the legal support of their life and work. Participation to several lawyers, successive testifies to the low quality of the protection of the suspect (the accused). During the pre-trial proceedings, proof the party needs not only the accusation. You must prove any facts connected with the crime. These include circumstances that can deny or change the charge, the identity of persons involved in a case, not only the suspect (the accused). In connection with this proposal with interest, «Rehabilitation: given that the code of criminal procedure has provided counsel to gather evidence, it would be useful to include a provision on the right to protection of their version of» protective «. Speaking about the most important stages and the directions of participation of the lawyer – the defender in proof in pre-judicial stages of criminal trial, Yu.F.Lubshev allocates: 1 . Discussion of evidentiary aspects of business on appointment to the suspect prior to his interrogation; 2 . Proof at permission court of questions of the conclusion of the suspect (accused) under guards and about extension of term of detention; 3 . Participation of the defender in investigative actions; 3.1 . Participation of the defender in interrogation of the suspect or accused; 3.2 . Participation of the defender in production of a confrontation between the client and other, earlier interrogated persons; 3.3 . Participation in interrogation of the witness according to the petition of the defender or the client; 3.4 . Participation of the defender in presentation of the suspect (accused) for an identification; 3.5 . Participation of the defender in verification of indications on a place;

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3.6 . Participation of the defender in production of investigative experiment; 3.7 . Participation of the defender in production of a search; 3.8 . Features of participation of the defender in production of investigative actions in judicial proceedings; 3.9 . About an order of research of proofs in a court session; 4 . The appeal in court of actions and decisions of the investigator, the investigator, the prosecutor [61, with. 129]. Basis for participation of the defender in the course of proof and development of a position of protection is the right to appointment to the suspect (accused). It should be noted that RK Criminal Procedure Code (ч.2 Art. 74) establishes only the right of the defender to appointment to the client alone and confidentially, without restrictions of their quantity and duration. At the same time according to the Law of the Republic of Kazakhstan of March 30, 1999 No. 353-1 «About an order and conditions of detention of suspects and crimes accused of commission» «Regulations of temporary detention centers of law-enforcement bodies» by which the order of carrying out appointment of suspects (accused) with the defender is established are approved. In these rules the following is provided: 1) appointment suspected and accused with the defender is provided upon presentation of the last of the document on the admission to participation in the criminal case, the given-out person or body in which production there is a criminal case, on the basis of the warrant of legal consultation; 2) attempt of the defender to transfer in an appointment course to the client of data which can prevent truth establishment on criminal case or promote commission of crime, involves the early termination of appointment and the direction administration of a pre-trial detention center of materials for check on such fact in Bar. In this regard, in our opinion, it is necessary to pay special attention to Yu.I.Velikoselskogo’s opinion on need of settlement, about an order of providing appointment of the suspect (accused) with the defender in RK Criminal Procedure Code, including possibility of restriction of such appointment. Thus restriction of appointments of the suspect

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(accused) with the defender or the specific defender can be established according to the judgment for safety of participants of criminal legal proceedings or counteraction prevention to investigation by different way on heavy or especially serious crimes for a period of up to three days or to the solution of a question on replacement of the defender. Such norm could serve as the sanction for illegal behavior of the defender and accused at counteraction to investigation from their party. The criminal procedure law provides judicial control of legality and validity of arrest (Art. 110 of the Criminal Procedure Code of RK). According to this norm, the suspect (the accused), their protector, the authorized legal representative have the right to appeal against a measure of restraint, arrest, and the extension of the arrest. Since the new version of article 2 (h) of the Constitution provides for 16. authorization of arrest only CCP, the Court should provide for immediate delivery of the suspect (the accused) to the judge, who is responsible for the exercise of judicial power. In addition, the rule would require the mandatory presence of a suspect (accused) in deciding whether to arrest. The requirement to provide immediacy of the interested person to the Court is particularly strict and allows only a limited amount of time, which is calculated in hours. The hand «immediately» imposes on the State a duty to adapt the judicial system in such a way as to comply with applicable legal requirement quickly and automatically check any freedom in the context of criminal proceedings. Article 74 of the CODE of CRIMINAL PROCEDURE lays down the powers of the Ombudsman. So, the question of the participation of defence counsel in the process of proof is governed by h. 2 of this article, which provides for the right to have counsel with a suspect (accused) visit private and confidential. The legislator has not «these powers in the first place, since it was the lawyer’s conversation with his client is the most important source of primary information on the case. This conversation is the starting point for the participation of defence counsel in the evidence. It should be noted that a lawyer needs to build skills with his client and comply with a number of professional ethical rules.

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Of particular importance is the first conversation with the lawyer detained or held in custody. In practice, as a rule, the detention and end of a suspect by a defender, and later participates in the other. This leads to two situations: first, where the Defender participated in the apprehension and detention, Protocol sign participated during the first end of the detainee and the second situation is when the detention Protocol signed one defender, and participates in the questioning of another defendant or intended use, or by agreement. On this basis, it should be noted that when a conversation with a suspect, a basic outline of the conversation in the first place, if this were procedural and investigative actions with a suspect (accused) defender review the procedural documents, ‘ if he did not take part in them. In this case, the Defender has a shallow, but some of the information, in accordance with which it can build the defence. During a conversation with his client, you need to find out the circumstances of the case. This raises the ethical conflict of the plan, which is linked to the role and purpose (function) of defence counsel in criminal proceedings. The most complete description of different views on a problem of appointment (function) of the defender gives A.D.Boykov in the work devoted to a problem of ethics of professional protection on criminal cases the Author in work gives views of Arnold Trebacha who points to existence of four theories differently characterizing functions of the defender (at unanimity of views on its procedural situation): the competitiveness theory, the truth theory, the theory of the intermediary and the theory of the lawyer-criminologist. Filimonov B. And in detail the defender representative accused, the defender assistant accused, the defender lawyer, the defender – body of criminal legal proceedings, the defender – an independent procedural figure. The similar points of view contain in criminal procedure science, and discussion goes back to the second half of the XIX century. In the 70th g of the XIX century the question of the legal nature of formal protection for the first time was raised. Palkhovsky A.M. in the research about lawyer activity I specified that «legal profession as the

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legal institute makes the necessary accessory, a necessary component of the court which is rationally sending the function... the legal profession is necessary for the correct, strictly scientific protection of interests seeming and defendants. The lawyer in strict sense of this word can be the representative of science in court. Therefore the legal profession on essence isn’t institute neither state, nor private law, and serves only to the highest scientific interests». This point of view goes back to «the body theory», stated by various German scientists. «The body theory» found the basis in the Federal provision on legal profession of Germany, agrees § 1 which the lawyer was defined as «independent body of legal proceedings». In this theory three main directions in which also we can observe some distinctions are observed. The first part defines the Defender as a State body. It was based on public law started in the activities of the Ombudsman. The challenge is to find a defender of the truth and to make a just decision by the Court. This theory is largely based on the institution of mandatory defence. The second series a defender not an organ of the State, but the body of the criminal proceedings. Currently, this theory is substantiated criticism, in particular, its provisions under which the Defender shall maintain protection, guided by the goals of finding the truth. The concept of authority in this theory is uncertain. Of this theory is the impartiality of the legal assessment of the facts of the case, the requirement to take into account the interests of the State, participation in the management process. In accordance with this theory advocate does not protect the rights and interests of the State. The third direction regards counsel as part of criminal proceedings. Defense Attorney serves in the criminal process in some form and holds a special place reserved in the framework of criminal proceedings. first of all, it is in the interest of society, then the defendant’s interests. this area is closest to the look of the legislator, who has a special place in the system of criminal procedure, the procedural situation, which defines its capabilities and, ultimately, the content of the formal protection. The legal nature of formal protection in the history of law was determined by the representation of the interests of his client. According to this theory, the accused and counsel is independent of

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the shape. The defence and security policy defines them independently. Vaskovsky E.V. I emphasized public nature of protection in criminal trial – «both in criminal, and in civil process the lawyer acts as authorized society, in its interests». It defined the defender as lawyer. «The legal profession in the true sense words represents right protection, i.e., in other words, the legal aid rendered to persons needing it by legal experts». It is represented that the concept «rendering a legal aid» doesn’t cover all activity of the lawyer defender. Foynitsky I.Ya. considers that the defender in criminal trial is more independent of a position of the client, than the representative in civil process. It should be noted that discussions are on this matter conducted and during the modern period. In particular, E.Yu. Lviv points to three possible positions of the lawyer at the first conversation with the client: 1) the lawyer wants to know that was actually; 2) the lawyer takes «trust» everything that the client speaks to him; 3) the defender puts own interests above interests of the client. The author takes a position according to which interests of the client have to be defining in activity of the defender: «it is necessary to trust the client». About it the N Polyansky specified: «On the lawyer the absolute debt lies to test everything within the law that is possible for protection accused if in his soul there is a doubt, it has to banish it from itself(himself), it has to make heroic effort over itself(himself) and subordinate to the professional duty the feeling of truth. Besides, than the lawyer is more skilled, especially he is accustomed «not to trust even to «own belief» in guilt accused». The miller of B.B. notices that the lawyer can know everything about facts of the case in two cases: or when it participated in a crime or when witnessed its commission. And both in the first, and in the second case the lawyer can’t act as the defender on business any more. The defender knows only that he was told by his client. It is necessary to agree with opinion of Yu.I.Velikoselskogo according to which the legal nature of protection is defined on stages

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of preliminary investigation by a ratio of public and private interests in activity of participants of criminal legal proceedings from protection. Thus the law provides them the rights which essence consists in possibility of use of any means of protection which don’t contradict the general principles and provisions of the criminal procedure right. Thus it is necessary to recognize that activity of the lawyer defender it has to be directed on protection of the rights and interests of the client. Including by obtaining information on business by the ways specified in the law. At the first stage of conversation with the client the defender has to find out, first of all, existence of the material and procedural circumstances involving an exception of crime of act or circumstances, exempting from liability and punishment. Then questions and conversation have to be directed on clarification of circumstances softening responsibility. It is necessary for definition of the direction of the information search, confirming these circumstances. And only after that it is necessary to explain the rights to the client with the detailed instruction on real means and ways of their realization. In accordance with ch. 2 art. 74 of the RK Defender shall collect and report objects, documents and information necessary for the provision of legal assistance. This version of the article is not entirely Christian acceptable: the concept of «legal aid» and «implementation of protection in criminal proceedings is not identical. It appears that, under the legal aid is to be understood, especially, consulting services and representation of interests. Nature protection in criminalcasesa bit different – it is the privatepublic nature and only intersects with the concept of «legal advice». Admittedly more successful the above wording h. St 3.14 the law of the Republic of Kazakhstan «about lawyer activity. In article 3 h. 125 CRPC PK ‘ on the right of counsel to bring specialist in accordance with current legislation. To examine the activities of the Ombudsman are set and his rights under part 2 art. 74 of the RK. In particular, attend upon presentation of the charges; to participate in the end of a suspect (accused), as well as in other investigative activities, mass-produced with the participation of the suspect, accused of having his (the Defender) in accordance

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with the procedure established by the present Code, to file petitions and pleas. In the researches devoted to participation of the defender in the course of proof, attempts to classify actions of the defender by participation in proof process are made. So, WL Enikeev, R.Z.Enikeev divide the activity of the defender evidentiary or connected with proof on the basis of his independence or dependence and independence or dependence on bodies of criminal prosecution and court at the solution of a question on commission of the corresponding actions into independent evidentiary activity of the defender and dependent activity of the defender. Authors refer collecting and submission of proofs to the first group; involvement of the expert for assistance; other ways not forbidden by the law and means of protection; statement of petitions and submission of complaints; studying by the lawyer of materials of criminal case. To the second group – participation of the lawyer in investigative actions; participation of the lawyer in preliminary hearing; participation of the lawyer in research of proofs during judicial proceedings. It is represented that this classification has the right to existence, but needs some adjustment. In particular, activities of the defender for participation in proof process at pre-judicial stages essentially differ from the same activity at a stage of judicial proceedings and in stages of the appeal and supervising production by the next moments. At a stage of preliminary investigation in the conditions of limited action of the principle of competitiveness the defender receives information from limited quantity of sources: at appointment from the client, from procedural documents in which investigative and procedural actions with participation of the suspect and accused are reflected, and with participation in procedural and investigative actions in which the client participates. The defender has no opportunity to participate in check and an assessment of proofs. At a stage of judicial proceedings the defender has a complete idea of system of the evidence produced by the party of charge, has opportunity directly to participate in their check, research and by that essentially to influence their assessment. Analysis of criminal procedure literature, legislation and law

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enforcement allows classification of counsel of the evidence during the preliminary investigation, as follows: 1) from the client in the course of conversations and appointments; 2) receiving and representations of subjects and documents which can be recognized as material evidences and others; 3) poll of persons, from their consent; 4) obtaining data from the expert in forms: a) conclusions of the expert; b) consultations of the expert; c) poll of the expert; 5) by means of services of the private detective enterprises. Participations in the investigative and other procedural actions which are carried out on an initiative or on the solution of faces, carrying out criminal prosecution: 1) participations in investigative and other procedural actions in which participation of the defender is obligatory for the persons which are carrying out criminal prosecution; 2) statement of petitions for familiarizing with matter in quality of proofs of materials; 3) the statement of the petitions connected with appointment and carrying out examination; 4) the statement of petitions for participation in investigative actions in which the client doesn’t participate. We selected the second defender of the procedure of the suspect (the accused) is proof of its involvement in a criminal case. To have chosen the investigator against his client is a preventive measure, the Defender must either refute the accusation (suspects) and thus to prove the need to exclude his client from a number of subjects which may be remanded or justify the absence in case of grounds for preventive measure. If the task cannot be is solved, the Defender shall identify the circumstances favorable to the defendant, and they strive to persuade an investigator to change the measure of restraint for a lighter. By participating in the process of proof in a criminal case, the Defender shall:

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a) to disprove charge (suspicion) by criticism of proofs lying in its basis, including by the instruction on their inadmissibility; b) positively to prove the facts incompatible with the facts, incriminated to the client; c) to point to not research of the version disproving the version of charge (suspicion); d) to point to insufficiency of the proofs underlying charge (suspicion). The proof is to obtain evidence and manipulating in order to recreate actual paintings of the event – is the only means of reaching the truth in the matter. Beyond the evidence of the judicial power (Justice), namely the resolution of social conflicts in a Court of law is impossible. Therefore, proof and evidence, according to past and present researchers, have been and remain at the heart of the criminal justice process. As is well-known, the basis for election security measures there is a well-founded suspicion about possible procedural violation by the defendant. Since the procedural error – failure of the future, the reason these measures have prognostic significance, because the future is always likely to breach. This is a discussion on theory of criminal proceedings and difficulties in practical application. The basis for applying the precautionary measure must be established by evidence pointing to specific facts, otherwise the restriction of personal freedom would be unwarranted. The proof is in the collection, study, evaluation, and use of evidence in order to establish the facts relevant to a legitimate, reasonable and just settlement of the case (CODE of CRIMINAL PROCEDURE, art. 124 1 RC). For the successful defense of a suspect (accused) defense attorney should participate actively in the entire process of proof. In this part it is unilateral: Defense Attorney involved in this direction in order to identify the circumstances justifying the suspect (the accused) or mitigating their responsibility. In theory, there is evidence that the postulate on pre-trial stages of criminal proceedings, the evidence base formed by gathering evidence of law enforcement officials: to conduct an inquiry, an investigator,

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Prosecutor, and such members as the suspect, accused, counsel, victim only participate in one form or another. The science of the criminal process is a discussion question on the possibility of the participation of defence counsel in criminal case evidence. In the first place, the science and practice of wondering whether the objects collected by the Defender originally, that is not yet being made official in charge of the criminal case, be recognized as evidence in the case? So, Whose A.V. and K. B. Kalinowski in his tutorial, write: «in our view, in accordance with the principle of equality of the parties, information collected through the quarterback, are evidence, as well as information collected by its opponentsinvestigator, procedural body of inquiry». According to the same information, Ln Bashkatova collected quarterback, did not have adequate procedural forms and therefore cannot have the status of evidence. Such documents are becoming such status only after the decision of the Court, Prosecutor, investigator and interrogator for the admission to case them». Before to express its views on the above problem, we consider it necessary to make the following clarification. First, in our view the Belkin R.S. fair, noting that «when an offence arises does not, strictly speaking, evidence, and information about the crime, which may be or may not purchase (for whatever reason), the meanings and evidence collecting of evidence this is actually about collecting information about a crime that is being investigated and evaluated by the investigator, may acquire the status of evidence. In this case, however, the law says the gathering of evidence, although the text of art. 86 of the CODE of CRIMINAL PROCEDURE (art. 125 of the CODE of CRIMINAL PROCEDURE) is that it is a «future» evidence «. Secondly, the code of criminal procedure of Kazakhstan under evidence understand actuals (ch. 1 of the CODE of CRIMINAL PROCEDURE, art. 115), which is logical as not because the evidence initially could not be considered as facts, that is definitely a trustworthy data, they are still subject to research and evaluation by the Court and the parties, and they can be evaluated differently. In other words, the accuracy of specified information is not required for the proof is the

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proof information may indicate the facts and the with probability. As a rule, the reliability of this information can be made only on the final assessment of the totality of the evidence. About A.R. Belkin writes: «there is considerable merit in Having an objective reality, reality does not depend on the perception of his personality, his knowledge of proof, penetration in its essence. Fact may be misleading, because the reliability is not the fact of, and the knowledge of a fact. May be assumptions of fact;. Fact exist or not exist, existed or did not exist. But if the fact is a reality which cannot be credible or probable, the same cannot be said about the nature of our information about the reality of that fact. Information on the existence or non-existence of fact are true or plausible assumptions. In this regard, it is a fair criticism of the adoption of the U.S. Nurmaševa that: «If the application is rejected by the investigator or the Court, then, the actuals are considered, for example, the accused, suspect or defender, meaning the case won’t be evidence». So, if we talk about the evidence, it is impossible to apply the terms «reliable», «implausible», «probable». «Unreliable» or «probable» evidence is not proof at all, because you can only prove that no doubt the veracity. Reliable or unreliable source can only be evidence from which we receive information about the existence of the evidence. It is therefore correct definition of proof in a criminal case, the CODE of CRIMINAL PROCEDURE, which in part 1 is written: «criminal evidence means any information by which ...». Thirdly, article 74 of the CODE of CRIMINAL PROCEDURE, referred to as the «lawyer» Powers where in h 2 recorded that the Defender shall: collect and report objects, documents and information necessary for legal assistance «. In the interpretation of article 2 h of the WT and 74 h St 3.125 of the CODE of CRIMINAL PROCEDURE, it is revealed that there is a conflict between those rules, in the first case, the legislator has determined that the Defender has the right to «collect and report objects» and the second is that the Defender has the right to present evidence and gather information. To clarify this conflict should be guided by the following. Of course legal theory it is known that if there is a conflict

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between the General and the special rule, the application is subject to the special rule. In our case (i.e., in the context of evidence), the special rule is part 3 of article 125 of the CODE of CRIMINAL PROCEDURE. Moreover, according to part 1 of article 125 of the CODE of CRIMINAL PROCEDURE, evidence of mass-produced in the course of pre-trial and trial proceedings by are investigative and judicial proceedings under the CODE of CRIMINAL PROCEDURE of the Republic of Kazakhstan. Procedural acts, as it is known, may only be carried out by officials in charge of the criminal case. In this case the legislator thus defined the meaning of «evidence», and according to the rules of the linguistic interpretation, if the legislator by using the legal definition (in the definition of the General rules of the Act) or otherwise determined the meaning of the term, it is in this sense and it should be used. Now, with regard to the question of the procedural status of objects collected by the solicitor-advocate. No help, no description, no other objects collected by the Defender (part 3 of article 125 of the CRIMINAL PROCEEDING CODE) may not be initially considered evidence, as they did not meet the mandatory grounds of validity evidence. They are outstanding and are not incorporated into the procedure and the procedural form. Therefore, all of the information collected, the Defender can become evidence after they are presented to the leading production, they have recognized the importance of the case and acquire the necessary procedural form, namely, the person interviewed Attorney-counsel to be questioned on the rules of end of witness, victim; reference documents (specifications) are enclosed to materials of the criminal case by Decree (definition). The Defender collected information can form the basis for the statement of claim, for example, the expertise. Failure to observe the procedural forms of evidence leads to various negative effects. So, the CCP gives very wide powers of counsel without the clear regulation of its actions and to determine responsibility for the improper implementation. The law does not provide a procedure for getting the quarterback reference, features and other information. The defense attorney, under part 2 of article 74 of the CODE of

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CRIMINAL PROCEDURE, has the right to visit the suspect (the accused) in private, confidential, then eats the defense attorney can obtain from the suspect (the accused) full information about where the defense attorney has the right to remove data traces, including procedural. Moreover, the order of the defender of the documents from home does not require the authorization of the Procurator or the Court. Not determined responsibility of defence counsel for the illegality of the exemption documents and other information. This greatly reduces the possibility of criminal prosecution of crimes. It should be borne in mind that the staff of the Organization, where the suspect (the accused) has left traces of the offence may also be implicated in the Commission of the offence and therefore be interested to help Attorney-Defender. Therefore, they can provide a lawyer-lawyer all documents, for example, on financial activity of the enterprise, without which you will not be able to prove the offence. From the point of view of the staff of this Organization would be correct: the Defender has the right to obtain documents, including original documents. Reclaim the seized documents from the defence counsel may not be, because he is not responsible for the security of the documents seized and may simply lose. Thus, defense attorney collects material (still not a proof), possessing the property of relevance, and then submits it to the person conducting the proceedings to obtain the properties of the words, it eats the objects become evidence (they «legalized» or «transformed» in such order in evidence). Then there is the solicitor-advocate for the collection of evidence is indirect, through the activities of the persons leading the proceedings. In this connection, we consider it appropriate to that part 3 of article 125 of the CODE of CRIMINAL PROCEDURE drafted by lawmaker fails: «the defence counsel may present evidence and gather information. It is unclear how the Defender can present evidence and gather information! After the presentation of evidence is usually preceded by a gathering of this evidence, and the norm is that counsel can collect information, not evidence. We support the view of A.A. Vlasova and 8452 Kuksina, who note that «in the investigation of the criminal case of a lawyer is involved in proving that includes the

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identification, collection and presentation of evidence». Consequently, if a defense attorney represents the evidence of officer in charge of the criminal case, then logically have to conclude that he collects the evidence. Since we are not unreasonably concluded that the objects collected by the solicitor-advocate, may not initially (it eats not being connected by the investigator or other authorized officer to the case) be recognized as evidence in the case, we believe that in the context of part 3 of article 125 of the CODE of CRIMINAL PROCEDURE, defense attorney collects and presents the information (materials), not evidence, as defined in part 3 of article 125 of the CODE of CRIMINAL PROCEDURE. In this connection, you must understand that it is to be understood under the term «evidence». Criminal Procedure Act did not disclose the content of the above term. In a procedural science as it has been interpreted in different ways. Some scientists mean by presentation of evidence to the investigator transfers objects and documents relevant to the case. Other processualisty is meant by the «evidentiary» not only with the transfer of items, but the investigator and the statement of claim, as well as participate in the investigative actions. Question: what materials should be provided as proof of authority investigation, resolves itself. Based on the characteristics of its procedural provisions and its function in the criminal process, it is clear that the evidence submitted must be either completely, or contain information that mitigate the responsibility of the defendant. Neither the investigator nor the investigator, the Procurator, the judge or court shall not entrust the Defender picking up material that he himself does not consider it necessary to introduce. However, he himself is not able to collect and retain evidence instead of the body of the Court’s investigations. Therefore, no investigations in this direction may not make quarterback. Based on the foregoing, in order to avoid uncertainty in the understanding and application of (part 3 of article 125 of the CODE of CRIMINAL PROCEDURE), we offer the following form: 3. the defender in order with this code to participate in the case,

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has the right to collect and report information required for legal aid (all as in the current edition of the CODE of CRIMINAL PROCEDURE of the Republic of Kazakhstan). The above applies to (p. p. 3 p. 3 article 14) of the law «on advocacy», where it is recorded that the Attorney, acting as defence counsel, shall be entitled, in accordance with the procedural law to collect the evidence necessary for the provision of legal assistance, and to submit evidence «(as can be seen from the text of the rule, there is a discrepancy as to the similar rule of the CCP, which we pointed out above). On the existing legislation on criminal procedure of the Republic of Kazakhstan regulating lawyers ‘ shortcomings are active discussions. So, K.h. Khalikov notes that «the law on the legal profession does not meet today’s requirements: the lawyers law and the scope of their duties do not stimulate the activity of lawyers. Not well-regulated Abogados bringing to disciplinary responsibility. The Innovative character of the Association requires the adoption of the law on the bar, taking into account the new conditions that significantly expands the scope of counsel «. In accordance with part 3 of article 125 of the CODE of CRIMINAL PROCEDURE, defence counsel has a right to submit evidence and collect the information required for the provision of legal assistance including interview persons with their consent, as well as request help, specifications and other documents from organizations that owe over 10 days to issue these documents or their copies. Like information gathered during interviews with persons with their consent, is the quarterback. At the request of the defender of the interviewer can fix the well-known circumstances in the form of an memorandum are self-explanatory or phonograms, and verify signature validity of their words, recorded by the Defender. In our view, counsel should ask the interviewer to present its information in writing. With such a document, the Defender can have great reason to count on satisfaction of a complaint by the Prosecutor. A lawyer, in contrast to a valid requirements of the investigator, the investigator, the Procurator, judges and the Court was not compulsory in nature.

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Before submitting information, the investigator with the evidential value, the investigator, the Procurator, the judge or court, counsel must ensure that they are of the nature of an acquittal. Sometimes the evaluation of evidence is a difficult task, as it requires the use of an area of knowledge, which the Defender does not have. Therefore, before you provide the relevant information to the investigator, counsel should consult a specialist. The Defender can seek the assistance of a specialist if you need to use special means and ways of fixing the received information. Prepared by a specialist (technician, photographer) plan, photographs can be submitted to the investigator. Neither quarterback, and if necessary may be questioned as a witness. The protector of their right to provide data that have probative value, going by statements of the relevant motions. In considering the request of counsel for the admission in evidence of objects and documents, the person conducting the investigation must ascertain whether it meets the requirements of relevance and authenticity. Under relevance refers to the existence of an objective link between the content of the law of evidence (information contained in the evidence), and by the facts that are the subject of judicial cognition. On the basis of meaning (p. 1 0 2: article 82 of the CODE of CRIMINAL PROCEDURE), the investigator shall interrogate the defender at the circumstances it appears that the object or document. The data represented by counsel having probative value should be the requirements set out in part 6 of article 119 of the CODE of CRIMINAL PROCEDURE. The testimony of witnesses, victims cannot serve as evidence in a criminal case, if they could not identify the source of its information. Therefore, the Defender shall state in the application, from whom and in what circumstances the actual data are received. In this case, the investigator has the opportunity to cross-examine the person cited. Therefore, the more the Defender had made to facilitate the work of the investigator to determine the relevance and accuracy of its documents and objects, the more hope for bringing them to the case as evidence. Semeniako E.V. believes the Defender has the right to conduct so-called parallel or the investigation. The parallel investigation

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as «simultaneous investigations by defence counsel to identify exculpatory or mitigating circumstances on its conclusions in a judgement of opinion or conclusion about the leniency of the accused». If you agree with scientists proposing a parallel investigation in the case, it means that all lawyer-lawyer in order of part 3 of article 125 of the CODE of CRIMINAL PROCEDURE, evidence should be admissible evidence. The conditions for the words of evidence collected by the defence is significantly different from the conditions for the words of evidence collected by the prosecution, since the protection has no right to apply coercive measures upon the collection of evidence, etc. The Institute of investigation in the criminal process «necessary to legislate the order of evidence, as well as the criteria for the words of the evidence for the defence. The idea for the investigation at present is unacceptable to Kazakhstan’s criminal procedure. At first glance, they are justified by the increased competitiveness in the criminal process in accordance with the principle of legal proceedings on the basis of the adversary system and equality of parties (article 23 of the CODE of CRIMINAL PROCEDURE). To implement this principle, particularly in the pre-trial stages of the process, where the defense capabilities of the collection of evidence in the case is well below the comparison with the preliminary investigation bodies. These ideas can be realized through reform of criminal procedure Kazakhstan’s. Proposed form of adversarial system characteristic of Anglo-American criminal procedure. Therefore, the opponents of «parallel investigations» rightly argue that the artificial introduction of Western-style confrontation in the neprisposoblennuû system of the criminal process can only destroy the established order crime investigation. Thus, we come to the following conclusionam: first, the Defender shall not, as officials of the prosecution and the Court, to collectevidence; Secondly, counsel for the collection of evidence does not entail recognition of the words of the evidence obtained in this manner. This means that the Attorney collects materials that carry the information with the relevance, and then submits them to the

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agent, the investigator, judge, for inclusion in the case file and have the properties in accordance with the valid CODE of CRIMINAL PROCEDURE of the Defender is not able to collect evidence in a case and collects them through the transfer of playersempowered to collect evidence. Under part 2 of article 74 of the CODE of CRIMINAL PROCEDURE, counsel is collecting evidence on the case indirectly and thus participates in the collection of evidence. This is because the activities of the Ombudsman for the collection of evidence is indirect, through the activities of the persons leading the proceedings, not the legislator regulates the procedure for gathering evidence, since it does not advocate was procedural in nature, and is a «predprocessual′noj» or neprocessual′noj activity. Causes the active discussions in science of criminal procedure rule «asymmetries of the rules for the words of evidence.» As is known, the information obtained in violation of the law, cannot be recognized as criminal evidence (article 116 of the CODE of CRIMINAL PROCEDURE), but some scholars and practitioners believe that the rules apply only to the inadmissibility of evidence of guilty evidences exculpatory evidence obtained. in violation of the law, MOGuth StudyinguseXiaof the partiesOysupporters of the protection rules of evidence of the exodusYatthat the accused cannot be held accountable for the investigator, which eliminated exonerating evidence. According to Pashin «the burden of dokazyvani S.a.(I)the guilt of the person lying on the side of the prosecution. the defence shall have the right to both prove the innocence of the accused, and to question the evidence of guilt. in the latter case, it may not be valid evidence to assume in the hands of an adverse party «. Be in favor of the rules for the words of evidence are well-known Russian lawyers AK, Korenevskogo V. Yu., and G. P. Padvy: «evidence obtained in narušeni(e) the established order or to the rights of the accused and found to be inadmissible on this ground, can (with some exceptions) usedSJ in order to protect the defence if, deprived of such a right, it will turn out that the negative effects of the violations, irregularities in obtaining evidence that the accused is on the accused and his defence counsel, in essence, the responsibility for such

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violations.(D)a justification of their position they cite the following example: «at the request of the accused an investigator interviewed a witness who confirmed the link accused to alibi. Negligent homicide investigator a witness has been warned about responsibility for false testimony. If the re-examination of the witness is not possible, can I exclude his evidence from the evidence, not to take them into account when assessing the evidence of the guilt of the accused? We believe that it is impossible. Anyway, the Defender shall be entitled to use such evidence in support of its position, this does not exclude, of course, need to verify the accuracy of these readings as well all other evidence «. However, other scientists, vice versa, be that the claim of the rules of words of evidence is inconsistent with the law in this regard, Professor N.I. Kapinus rightly notes that: «the main legal provisions that prevent a positive manner the issue of asymmetries in the rules for the words of evidence are: 1) the inadmissibility of illegally obtained evidence; 2) principle of the equality of the parties in criminal proceedings before the Court; 3) principle of common evidence; 4) recognition of the legislature unable to use inadmissible evidence to prove any of the circumstances provided for in article 73 of the CODE of CRIMINAL PROCEDURE. Morally unfair to deprive the defence of rights used to justify its position, the evidence obtained by the investigator. But, bettering their language skills, we agree with the views of those scholars who oppose the asymmetries of the rules for the words of evidence. The task of bodies of preliminary investigation consists in making comprehensive, full and objective investigation that is one of the principles of criminal trial of article 24 Criminal Procedure Code RK, and also to prepare evidentiary base of charge for consideration of the case in court. The investigator is obliged to collect and justificatory proofs, but only objectively to make investigation. It bears responsibility for the activity before the chief of investigative department, the prosecutor, the state as a whole, whose interests it represents in criminal trial. Probably, the only case when the investigator collects proofs directly in interests of the suspect accused and the defender and as though

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bears before them responsibility for obtaining the good-quality proof, the satisfaction of petitions for production of the investigative actions directed on obtaining data on circumstances, important for business, ensuring the rights and legitimate interests of the person who has declared the petition, or the person represented to them respectively part 1 article 102 Criminal Procedure Code RK is. But also in this case negative consequences for the allowed violations of the law will be undergone by the investigator as circumstances interesting protection surely have to them be found out and checked. If the petition which is subject to satisfaction, remains unrealized, the facts approved in it (for example, the alibi) will be considered existing, won’t be proved yet the return. And it means that the investigator needs to make anew investigative action and to obtain the appropriate evidence, and at impossibility – to make favorable for accused the procedural decision as, ineradicable doubts are interpreted in its advantage. Other question – a question of the prejudiced relation to the client from the accuser and it is frequent from the court, being expressed that versions accused and the defender aren’t taken into account, are ignored, to them don’t listen and therefore quite, the desire of lawyers that in business was as much as possible justificatory proofs allowing in whole or in part to neutralize whose that there was an accusatory bias, but it already a problem of the relevant state agencies and their officials who are carrying out criminal prosecution and justice is clear. Therefore, a question not in provisions of the law, and in its correct application. The invalid proof of acquittal is not formal, but substantive violation of the law. Thus, the rules of be of the words of evidence is inconsistent with the current legislation of the Republic of Kazakhstan, and its use in criminal proceedings is inadmissible. Participation of the defender in research of proofs is carried out, according to article 127 Criminal Procedure Code RK rules, the following ways: a) their comparisons to other proofs which are available in criminal case;

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b) establishments of their sources; c) obtaining other proofs confirming or disproving the checked proof. In this way he participates in establishing the veracity of the evidence, and the charge they are proof of their authenticity, and acquittals – reliability. Reaffirming its conclusions about the charges or the lack of availability of mitigating circumstances of the suspect (the accused) available in the evidence, counsel should implement activities for evaluating them. Its specificity is that the analysis of the evidence against the suspect (the accused), the Defender tries to find evidence of such a connection with other facts which would give grounds to doubt their evidentiary value or even deny them. Exploring justifying the suspect (the accused) proof Defender tries to find and uncover their connection with other facts that strengthen their probative value. In criminal procedure literature reveals that the Defender is not subject to the evaluation of evidence, in other words, made the assessment procedure has no. Agree with that conclusion is to call into question the participation of defence counsel in the case. The Defender is unilateral, it evaluates the evidence in order to protect the rights and legitimate interests of the defendant. The results of the evaluation of the evidence by counsel are expressed in petitions, declarations, intended to convince the investigator, the Procurator or the Court in the correctness of his position, and the results of their work is couched in the procedural documents (regulations, definitions), describing the motion of a criminal case and enforceable. Thus, through its activities, the Defender can affect away the person making the investigation, assessment of the evidence on its inner conviction and thus the default IM solution. Taking into account the opinions of counsel and comparing them with the version of the charges, the investigator (investigator, Prosecutor and the Court) is the ability to quickly come to the correct conclusions and to ensure the comprehensive, complete and objective investigation of the circumstances of the case. Evaluation of evidence, in force (article 128 of the CODE of CRIMINAL PROCEDURE),must be done in terms of relevance,

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dopustimostandreliability, every evidence, and the whole Assembly of evidence together – whether for resolution of the criminal case. as a result of the evaluation,it means finding the proof established on the case circumstances and confidence in this conclusion. Protection of the rights of the suspect (the accused) as a defender of the procedure is to prevent any possible violations, monitoring and preparedness to respond to a possible violation, in other words, in the maintenance of smooth implementation. But as the law is powerless in the absence of sanctions and protection of rights is meaningless without their protection, i.e. the activities infringing their rights, limitation or an actual threat of violation. Therefore, in order to adequately protect the rights of the suspect (the accused) has a specific set of legal counsel, including those aimed at the restoration of violated rights, freedoms and legitimate interests of his client. Recommended sources 1. Tcherkasov N. V. Formation and legal profession development in Russia. – M, 1987. – 310 pages. 2. D.P.Advokat’s Whatman paper in criminal trial. – M, 1976. – 290 pages. 3. Sheyfer S. A. Collecting of proofs in the Soviet criminal trial: methodical and legal problems. – Saratov, 1986. – 271 pages. Questions for self-checking 1. Criminal procedure value of the data collected by the lawyer defender as a result of poll of the person from its consent. 2. Acts of lawyer investigation: types, forms, structure, contents and value. 3. Technique of acquaintance of the lawyer with materials of criminal case. Choice lawyer of the line of protection and its coordination with the client.

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CHAPTER 3 SINGLE QUESTIONS OF PARTICIPATION OF THE LAWYER - THE DEFENDER ON PRELIMINARY INVESTIGATION 3.1. Activity of the lawyer - the defender in criminal trial in foreign countries

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or a better understanding of the role and function of the legal profession in the Republic of Kazakhstan should pay attention to the unit of the Institute of legal profession in some foreign countries. Study of the systems of legal profession in foreign countries helps to forecast the development of the legal profession in our country. The bar is an integral part of the legal culture of the country, so we’ll look at the device of the legal profession in France and the United States–Agenthertwo different legal systems: the Anglo-Saxon and Roman-Germanic. Let’s start with the participation of defence counsel in criminal proceedings, the United States. The difficult legal system of the USA, traditionally high role of legal regulation of life of the American society predetermines a special place of a profession of the lawyer in comparison with other professional groups. Lawyers hold many key posts in economy and the state and political mechanism of the USA: here about 60% from total number of lawyers of the whole world work. The following data testify to a sociopolitical role of owners of the diploma of the lawyer in the USA: from 42 presidents 25 were lawyers; in particular, lawyers by profession were A.Linkoln, F.Roosevelt, G. Trumen, R. Nixon, B. Clinton. Over a half of senators and nearly a half of members of the House of Representatives of the Congress of the USA – lawyers. Owners of diplomas of the lawyer are a half of governors of states and 40% of diplomats. About 45% of the persons holding since the 1960th years the highest posts in the government, were the lawyers, more than 25% of government were made by the former lawyers.

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The term «legal profession» in the American legal system may refer to the not quite what lawyers are accustomed to the continental legal tradition, where under legal profession refers to legal professionals and their voluntary, non-governmental association devoted to providing legal assistance to a private individual and organizations, including the protection of criminal cases and other forms of representation in the courts. Instead of the bar, so familiar to lawyers of our France and other countries, the United States historically different forms of organization of the legal profession. for the most part, they are a different kind of associations of practitioners, which include, along with those whom we used to call lawyers, lawyers a profile, for example, working in the Prosecutor’s Office, the police, the legal advisers to the owners and employees of business firmsserving. Each State has its own bar association. There are associations, the sphere of actionnd which outputandso beyond one State and can even cover the whole country. «the latter is widely known for the American Association of Jurists (American Bar Association) – today the most representative in the United States. The main objective of all kinds of associations – to contribute to the professional activities of its members, the selection of persons who can serve as legal practitioners, maintaining their discipline and moral character, decent members of the Association, as well as to protectionandtheir interests.1 they shall test the knowledge and skills to members of the Association, recommend or do not recommend,or does not recommend them for certain legal positions (e.g., judges, prosecutors), develop a code of ethics for lawyers, enforced, making legislative proposals to improve legislation or participate in the preparation of regulations issued by the courts in recent decades it has become a tradition that American Presidents are consultedwith, say, the American Bar Association concerning the merits and demerits of the candidates for the posts of federal judges or prosecutors. Membership in the Association imposes a number of important duties, including the duty of the regular payment of membership fees, to maintain its high level of qualifications, conscientious attitude to

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the implementation of agreements for legal assistance, continued adherence to the rules of professional ethics and discipline, the detailed requirements which are developed and approved by the local authorities associations, maintaining their professional prestige and prestige of the Association and so on. To become a lawyer entitled to appear before the courts and there is little cause to be a member of an association. Still need to get a license to do business in specific courts. While it is permissible, subject to certain conditions, which are not the same everywhere. In New York State, for example, to obtain a license to do business in specific courts is required to submit to the Court, which will decide the issue, a number of documents on the set list. According to the laws of that State, for example, the practice in the courts (including as a criminal defense) can only United States citizens who have the appropriate education, legal experience, meet the moral criteria, believe in the politics of the United States and loyal to him. The issue of words is decided by the Court, but the Appeal Division of the Supreme Court of the State will certify that the person meets all the requirements of the State. The applicant should personally prove that he «believes in the form of Government that exists in the United States, and loyal towards it.» The same rules are established in other States and in federal courts but there are some highlights: in some States, a statement of admission can be monitored by the Prosecutor, who shall have the right, but is not obliged to refer it to the Court a statement of admission to practice in the Supreme Court of the United States should be maintained, asat least two other lawyers already practicing in this Court concerning the rules of procedure. in the Supreme Court of the United States the applicant should pronounce the oath: «I ... ... solemnly swear (affirm) that as an attorney and a consultant of the Court will support the Constitution of the United States.»licensing statement in this Court or in the courts of a particular State does not grant the right to do business in other courts. To speak there, you need to get a licence and in accordance with the established procedure. In recent decades, increasingly, defense lawyers in the so-

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called public agencies to provide legal assistance to the poor (public defenders ) agenciesare funded by such agencies. predominantly from local budgets, special contributions by the members of associations (typically those which, having a license to do business in the courts, for some reason do not wish to participate in the provision of legal assistance to the poor or indigent accused) and charitable donations: rather, these sources are often very limited and usually cannot completely ensure quality care to those in need. This is a very commonplace, well-known lawyers, all the countries concerned – for quality legal assistance in criminal matters are not only big fees to drive knowing their business and experienced attorneys, but also impressive, often costing many of dollars we of expenses at the invitation of experts, search for evidence protection, often with the help of private investigators, who also need to pay and so on.(P)in this type of expenditure otrebnost ′ acute in the United States and other Anglo-Saxon countries the criminal justice systems, which require considerable effort and means the burden of identifying and gathering evidence of protection is entrusted only to the side of the defense. In the United States there is no legal act that would have secured the right to a lawyer in legal proceedings. Defender’s status derives from a usage of case law, professional ethics. An essential condition for the participation of counsel in legal proceedings is set out in Amendment(VI)(1791) to the United States Constitution: «any criminal prosecutions, the accused has the right to a speedy and public trial by impartial jury of the State and County, previously established by law, where the crime was committed; the accused has the right to be informed of the nature and grounds of the charges, he has the right to be confronted with the witnesses against him, showing the right forced the calling of witnesses and to have the assistance of counsel for his defence. « In turn this amendment found the development in a number of decisions of the courts (1963 business «Gideron against Ueyntrayta»; 1966, business «Miranda against the State of Arizona»; 1977, business «Bryuer against Williams» and so on. ) . The essence of

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these decisions is reduced to the following principles: the right to the lawyer is fundamental and necessary for fair court, thus the right to the lawyer has everyone to whom punishment in the form of imprisonment can be appointed; the lawyer has to participate in those procedural actions where he can help accused «to cope with legal problems or when it is resisted by other procedural party». Thus, participation of the lawyer - the defender surely in any meeting regardless of, whether was found by the defendant of guilty or not. Thus, the participation of defence counsel is obligatory in any meeting, regardless of whether the defendant found guilty or not. Now, regarding the Attorney ethics in the United States. United States case law made up entire volumes rules of lawyer ethics. A defense attorney has to be completely loyal to his client. There are several aspects to this duty. First, any information relating to the case under consideration, the lawyer-client communications are confidential. Counsel may not unilaterally disclose the confidential information, and the State could not force him to define this information. The lawyer should use all tactics of protection, consistent with the norms of professional ethics, to ensure his client truly fair trial. If a lawyer’s conflict of interest, personal bias or prejudice that hinder the active and complete presentation of interests of the client, the lawyer cannot represent that client. But first, the lawyer should be independent. There should not be any doubt that the lawyer’s position depends on the public prosecution and the Court. Those lawyers, who took over the representation of the interests of persons accused of committing the most heinous crimes or those who expressed unpopular opinions in society, history of the American legal profession. Below we will discuss the main aspects of the lawyer-lawyer in criminal proceedings in France. Since the end of the XIX century in France the principle of independence of a lawyer profession which traditionally took a prestigious place in public life of the country was approved. Lawyers of France always used much bigger freedom, than in other countries of Europe that in turn promoted formation of the richest traditions of

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the French legal profession. Now in France more than 35 thousand lawyers are. If to this army to add a huge number of auxiliary services, the research centers and institutes, there is obvious a value of legal profession as public institute which plays huge role in state life as a whole. Before stopping on a question of the organization of legal profession, it is necessary to answer a question: who is a lawyer in France? In the last 20 years the legal profession of France endures essential changes. Under the law of December 31, 1971 there was a merge of a number of lawyer professions (the lawyer, the attorney and the consultant - the expert in commercial vessels) in a uniform profession of the lawyer. In 1992 also there was a merge of the lawyer and the legal adviser in a new and uniform profession. The specified changes were caused by that traditionally lawyer associations were organized at vessels of the relevant instances, were considered independent and didn’t consist in the relations of any sopodchinennost, without perceiving uniform professional standards. Now the uniform lawyer association is presented, and also the Center of vocational lawyer training is founded. Now there are three categories of the lawyers, having the right to act in court: solicitors, barrister and barrister before Council. Solicitors have the right to representation of interests in vessels of the first instance, barrister – in appeal courts and, at last, the parties in court of cassation and Council of the state have to be presented by experts – barrister before Council [98]. Though the legal profession isn’t among the bodies which are directly carrying out production on criminal cases, its value in system of the French criminal justice is rather great. The history of this legal institute totals in France many centuries and ascends to the XIII century. Now the organization and functions of legal profession are regulated by the Law of December 31, 1971, unification of the status of the lawyer and abolition of former division into lawyers in the close sense (avokat), confided (avoue) and legal advisers (conseil juridique) became the Purpose of these acts.

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The legal profession role in criminal legal proceedings is caused by that ensuring the right to a legal aid is assigned to it to participants of process: accused, injured (if it made the civil suit), to the detainee, some categories of witnesses. Thus rendering a legal aid in any process is the exclusive privilege of lawyers in France. The law of December 31, 1971 (Art. 4) says that «anybody, except the lawyer has no right to assist or represent interests of the parties, to run business and to act in vessels and legal agencies». Differently, in France there is no known problem in Kazakhstan «a circle of people, able to be allowed to matter in quality of defenders» as the lawyer practically acts as the defender in criminal legal proceedings of France only. Defining a profession of the lawyer as a profession «liberal and independent», in (Art. 3) the Law directly specifies that «lawyers are assistants to justice». It emphasizes their public mission which especially brightly is showing in the sphere of criminal justice. Such relation to functions of the lawyer in criminal trial isn’t new, but an additional impulse it received with formation so-called «schools of new social protection» which founding father (M. Ansel) by right is considered and which is in France a dominating doctrinal current in the field of substantive and procedural criminal law. Under the influence of this school idea of tasks of the lawyer changes also at protection of interests of the clients by it. The key problem riveting attention of the modern French legislator, real ensuring the right to a legal aid in criminal trial to all segments of the population, including those persons who aren’t able to conclude on the material reasons independently the agreement with lawyers is not formal, but. Protection of interests of poor or needy citizens becomes one of the priority directions of the French legal policy, including in the sphere of criminal justice. This problem is regulated in France by the special Law on a legal aid of July 10, 1991 in which accurate distinction of two forms of a legal aid is carried out: a) the judicial legal aid represented within all types of sudoproizvodstvo (including criminal);

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b) the help in access to the right, covering any consultation and non-judicial procedures. For coordination and optimization of providing the help in both forms the Law created National council on a legal aid. Recommended sources 1 . Dostoevsky F.M. Diary of the writer. Complete works. – M, 1990. – 680 pages. 2 . Stetsovsky Yu.I.Sovetskaya legal profession: studies. grant for higher education institutions. – M: The higher school, 1989. – 256 pages. Questions for self-checking 1 . Ethics of the lawyer in communication with the principal. 2 . Ethical rules of behavior of the lawyer at communication with colleagues.

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3.2. Ethical bases of activity of the lawyer - the defender at a stage of preliminary investigation

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n our opinion, the order and stability in the state are impossible, at least, without two components – economically acceptable condition of citizens, in particular middle class, and respect for laws. Because any individual won’t live in society where laws even if with prospering economy, it is impossible to speak about stability and an order aren’t observed with confidence in tomorrow as at its legal lawlessness can fling any minute in prison, select property, deprive of fundamental human rights and the citizen. At the same time, the legal order, legal society mean not only existence of good and stable laws, not only their observance by citizens and representatives of the state, but also without fail respect of the population for the people personifying the Law – to judges, prosecutors, lawyers, notaries, the staff of law-enforcement bodies, customs, tax inspection and police and so on. The greatest number of contacts of ordinary citizens happens to the law through lawyers. Naturally, actions of law enforcement officers (the main thing – police) also are very perceptible, however only when their behavior becomes illegal. So, if the inspector of UDP accurately observes law requirements, doesn’t «carp», doesn’t extort a bribe, doesn’t abuse the powers, we, at times, simply don’t notice its presence on the road. Another matter – lawyers. Them ask for legal aid, for protection of the violated rights. The unworthy or unfair behavior of the lawyer always becomes a subject of discussion between the client and his friends, relatives, colleagues. Therefore, about an unseemly act of the lawyer always and with need learns rather wide range of persons, the prestige of a profession is undermined. Caring of respect for the profession, lawyers protect interests of all Legal System of the state. But for ordinary citizens the prestige of lawyer activity is easily extrapolated on activity of all «judges», and to these, in particular, the respect for the Law in general is defined also. Thus, it is necessary to make the highest demands to lawyers from the point of view of observance of professional ethics and behavior standards.

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When we speak about prestige of a lawyer profession, we at all don’t mean as own internal opinion of the lawyer on his importance and a role in society has to be high. It is important, but not so main. The prestige of a profession is defined not by an internal self-assessment, and, on the contrary, an assessment of people around. It is unlikely today someone will begin to argue with that the question of development of the exact list of professional ethical establishments is so necessary for further development of domestic legal profession, as well as adoption of law about legal profession. To what game without rules» we well leads «we see in practice. The most terrible is that lawyers start humiliating each other, wallowing in intrigues, gossips, disrespectful public responses about each other. Interception of clients and mutual insults prosper. The psychology of the lone wolf, for which anything and nobody the decree is formed. Besides, it is historically proved that the legal profession which isn’t recognizing ethical principles, can’t count on trust of society. Strengthening of intervention of the state in legal profession affairs became result of it always that with need involved restriction of real independence of lawyer formations without which the legal profession as human rights institute is impossible. It is necessary to understand thus that for emergence of ethical problems in lawyer community there are rather objective reasons. Very often we simply deal with absolute normal aspiration of any professional, whose activity is based on his individual work, to be allocated among similar, to become more noticeable. However the competition between lawyers shouldn’t happen under Darwin laws of fight for a survival when all means are good and admissible. Such fight is natural and already therefore is possible, but has to take place in a framework of professional ethics. So what is lawyer ethics? What is the content of this notion? The term «ethics» comes from the Greek ethos-custom, moral character. It was first coined by Aristotle «as a special field of study is practical philosophy, as it tries to answer the question, what should we do». Subject to the overall ethics is a moral human behavior in General, any profession, in any circumstances.

Chapter 3

The subject of the Attorney ethics becomes a behavior representative of this profession, a member of the Corporation in circumstances where it acts exactly like a professional representing his profession, or is perceived as representative of Corporation lawyers will. It is important to immediately make that lawyer as the person can stick to any ethical teachings of any ethic, however, as a member of the Corporation for it can only be one system of professional values, only one set of standards of professional conduct. Of course, when aspects of a lawyer are ordinary law, inter alia, procedural codes, it is no longer of a purely ethical statutes, but on compliance with the law, which, by the way, for the lawyer in itself is one of ethics. Recommended sources 1. Semenyako E.V. Morals and dogma of the lawyer: professional legal ethics. The collection of scientific articles / under a general edition of I.L.Trunov. – M: Eksmo, 2008. – 608 pages. 2. Tugel A.K. Role of the lawyer in providing constitutional laws of citizens in a pre-judicial stage of criminal trial. // Providing constitutional laws of citizens in prejudicial stages of criminal trial: Inter@ materials nauchn-prakt. конф. Astana, on August 26-27, 2005 – Almaty: DP «Edelweiss», 2006. – 196 pages. 3. Makarova Z.V. Professional protection of the suspects accused. – SPb. : R. Aslanov’s publishing house «Legal Press center», 2008. – 338 pages. Questions for self-checking 1. Ethics of behavior of the lawyer in legal proceedings. 2. Court – judicial body on criminal cases. Powers of the professional judge and jurors. Lawful structure of court.

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1. Participation of the defender in criminal trial consists performed

by assigned to it criminally - procedural duties and realization of the powers conferred to it by the law. Thus specified duties and powers are formulated so that their realization promoted achievement of the tasks set for the defender. The maintenance of duties and powers of the defender is caused by appointment of institute of protection in criminal trial which in the broadest sense consists in realization of the fundamental criminal procedure principles, such as the principle of a presumption of innocence, the principle of competitiveness of the parties, the principle of providing suspected and accused the rights to protection and others. In turn, without realization of the specified criminal procedure principles it is impossible to present effective protection of the personality against illegal and unreasonable charge, condemnation, restriction of her rights and freedoms, so, and achievement by criminal legal proceedings of the appointment fixed in (article 8 Criminal Procedure Code RK). The specified means that criminal procedure activity of the defender is directly connected with achievement by criminal trial of the appointment. Fulfilling the duties assigned to it fixed to it in the power law, the defender promotes the solution of problems of criminal legal proceedings. 2. The defender at a stage of preliminary investigation isn’t a procedural figure of only this stage of criminal trial. Legal status of the defender is uniform for criminal trial as a whole, however on each of stages of criminal trial activity of the defender has the features. This circumstance gives the chance to indicate validity of uniform legal regulation existing nowadays criminally - procedural activity of the defender at a stage of preliminary investigation without fixing of duties and powers of the defender for each separate stage of criminal trial. Uniformity of legal regulation criminally - procedural activity of the defender provides also to the defender big freedom in a choice of

Conclusion

ways of protection of the rights and legitimate interests of the client, so, promotes improvement of quality of a legal aid rendered by the defender. At such approach the defender has an opportunity personally, on the basis of an assessment of a concrete criminal procedure situation to make decisions on expediency of realization of this or that power. Thus this assessment has to be made always by the defender being the lawyer, is exclusive from a position of need of the most high-quality and full execution of all duties assigned to it. 3. One of the most essential manifestations of specifics of procedural position of the defender at a stage of preliminary investigation is encumbrance of the defender by the duties assigned by the legislator to the professional lawyer. The lawyer who simply having no right, but is obliged to carry out the assumed protection by all ways not forbidden by the law can act as the defender at a stage of preliminary investigation only. Therefore the rights of the defender established in (article 74 Criminal Procedure Code RK) to stages of preliminary investigation get for it a form of powers, i.e. means of fulfillment of duties. 4. All elements of legal status of the defender are in indissoluble interrelation owing to what change of volume or character of any of elements of legal status of the defender will inevitably have direct impact on other its elements. The specified means that at improvement criminally - the procedural legislation regulating activity of the defender, it is necessary to take into account not only impact which will be had by these or those changes on a separate element of legal status of the defender, for example, on the maintenance of powers of the defender, but also on all other elements of his legal status. 5. Responsibility for non-execution, or inadequate execution by the defender of the duties assigned to it has direct impact on its criminal procedure activity. Any toughening of responsibility of the defender for a low-quality legal aid is inadmissible as it essentially will limit freedom of acceptance to the defender of decisions on realization of the powers conferred to it by the law. The specified measure will

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create the undesirable pressure upon activity of the defender, will lead to emergence of undesirable psychological consequences and only will lower quality of a legal aid rendered by the defender. Differently, at such approach not only overall effectiveness of protection of the rights and legitimate interests of the suspect (accused) will decrease, but also there will be obstacles to implementation of provisions (article 13) of the Constitution of RK that, in our opinion, is inadmissible. At the same time, the competent and weighed approach to improvement of a legal mechanism of involvement of the defender to responsibility for a low-quality legal aid can become the important tool in regulation and the direction criminally - procedural activity of the defender, improvement of institute of protection as a whole. The stated testifies that the norms defining responsibility of the defender for non-execution or inadequate execution of the duties, are the integral element of its legal status. 6. The duties assigned to the defender on a stage of preliminary investigation, define the maintenance of the powers conferred to the defender. Actually powers of the defender represent means of fulfillment of duties in this connection, have to be considered in structural unity with duties of the defender. 7. Operating on a stage of preliminary investigation, the defender having the status of the lawyer, realizes the powers, not proceeding from the dispozitivny will which is characteristic for right realization, namely in pursuance of the duties assigned to it. Thus, the defender at a stage of preliminary investigation is allocated with powers. It is necessary to consider that in criminally - procedural literature there are various approaches to understanding and interpretation of such concepts, as «the right of the defender» and «power of the defender» in this connection, different views on their ratio are quite admissible also. So, for example, in the legislation and in criminally - procedural science the concept «powers» is often used in a broad sense, including all set of the rights and duties of the procedural subject. In the real research by us it wasn’t put a task of definition only a right view of features of procedural position of the defender of

Conclusion

stages of preliminary investigation. However we tried to give to these features the most rational understanding which can form a theoretical basis for forward development criminally - the procedural legislation in this area. 8. Requirements of the law about need of participation of stages of preliminary investigation only the defender who has got in an order established by the law the procedural status of the lawyer, are caused by presentation by the legislator of increased requirements to the legal aid rendered by the lawyer in particular, and to activity of the lawyer as a whole. That fact that the rights of the lawyer who has entered criminal trial as the defender provided (article 74 Criminal Procedure Code RK), will be transformed to powers, allows to regulate in more detail activity of the defender at a stage of preliminary investigation, to send it to the necessary course and to focus on achievement of the tasks set by the legislator. It, in turn, will allow to provide the most effective and qualified protection of the rights and legitimate interests of the person concerning whom criminal prosecution at a stage of preliminary investigation is carried out. The suspect (accused) at a stage of preliminary investigation are in vulnerable and unreliable situation owing to what the increased protection of the rights of the specified subjects at this criminal procedure stage is a necessary condition of realization of the fundamental principles of criminal trial and an obligatory priority of lawmaking. 9. The analysis of the bases and order of finding of the procedural status of the defender allowed to establish discrepancy of the moment of acceptance by the lawyer on itself protection and the moment of acquisition by the lawyer of legal status of the defender. This conclusion is caused by that the lawyer who assumed protection and has concluded the relevant agreement with the client, for the various reasons can be not allowed to participation in criminal trial. Such situation is possible, for example, if after signing by the lawyer of the agreement with the client, but to his actual admission to participation

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in criminal trial it becomes known that the lawyer consists in the related or family relations with the official who accepted or takes part in investigation or consideration of the case of the client. The similar situation arises and at contradiction detection in interests of the client who has concluded the agreement with the lawyer, and the persons which interests the same lawyer already protects. 10. Protection is considered accepted at the time of coming into effect of the agreement on rendering the legal aid, concluded between the lawyer and the client, and exactly from this point at the lawyer who yet hasn’t got the procedural status of the defender, there is a duty to take measures for the introduction in criminal trial. Non-execution by the lawyer of this duty can lead to essential violation of the rights and legitimate interests of the client, so, in case of approach of adverse consequences for the client because of the lawyer, has to be considered as a low-quality legal aid. Important as well what from the moment of the introduction in validity of the agreement between the lawyer and the client, the lawyer can’t refuse the assumed protection. 11. According to provisions of the current legislation, the lawyer defender can participate in criminal trial, as under the agreement, and to destination. However absence at the suspected (accused) agreement on rendering a legal aid can’t be the basis for restriction of its rights to compensation of the harm done to it by a low-quality legal aid. 12. Providing each suspect (accused) by the qualified and conscientious legal aid is a direct duty of the state, and the lawyer, in case of his appointment as investigative authorities, enters criminal trial and in the absence of direct will of the client. Therefore the harm done to the suspect (accused) low-quality legal aid, on the essence is a consequence of involvement of the specified procedural subject to criminal liability in this connection, is subject to compensation and at absence at it of the agreement on rendering the legal aid, concluded with the lawyer. 13. Operating criminally - the procedural legislation of the Republic of Kazakhstan doesn’t provide to the suspect the right to

Conclusion

acquaintance with the protocol of the investigative action made on its petition. Therefore refusal of the investigator in delivery to the suspect of permission to participation in investigative action in compliance (with item 12 ч.7 Art. 68 of the Criminal Procedure Code of RK) will lead to situation emergence when the suspect won’t be able to study the protocol of the investigative action which has been carried out on its petition. Possibility of similar situations will hardly be coordinated with the principle of justice owing to what generates need of introduction of corresponding changes in legal regulation of the matter. 14. At implementation by the defender criminally - procedural activity at a stage of preliminary investigation there can be situations when submitted by the defender, for example, the document for the objective reasons isn’t prepared properly. Often the defender has no opportunities for the appropriate paperwork, represented to them as proofs. In practice inadequate registration of such documents is the basis for refusal is judicial - investigative authorities in familiarizing of the specified documents with materials of criminal case that in our opinion, directly contradicts the principles of criminal trial. According to (article 19 Criminal Procedure Code RK), the burden of proof of charge and a denial of the arguments given to protection of the suspect (accused), lies on the charge party. The defender having at a stage of preliminary investigation the status of the lawyer, has to use the best efforts and use the opportunities for confirmation of reliability of data presented to them. In cases when to make it for the objective reasons there is no opportunity, the party of charge has to attach to case papers the produced evidence and only then to challenge them. 15. At a stage of preliminary investigation of power of the lawyer defender can be significantly limited at subscription confiscation at it about nondisclosure of data of preliminary investigation in an order, provided (article 205 Criminal Procedure Code RK). Provisions (article 205 and 74 Criminal Procedure Code RK) allow to draw a conclusion that at the defender of a subscription about nondisclosure of data of preliminary investigation will give

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confiscation, to that the defender won’t be able without the permission of corresponding criminally - the procedural subject: • to state in the text of lawyer inquiry the circumstances concerning criminal case, in justification of directed lawyer inquiry; • to transfer to the expert for preparation of the conclusion of the copy of materials of criminal case, in case of making decision on need of representation to protection of the rights and legitimate interests of the suspected (accused) conclusion of the expert; • to give information concerning criminal case to the assistant attorney, the trainee of the lawyer; • to discuss for receiving consultations and improvement of quality of a rendered legal aid of circumstance of criminal case with the colleagues. The specified legal consequences significantly limit the right of the suspect (accused) on protection from what need of improvement criminally - the procedural legislation in the field follows. The lawyer - the defender in a case when he is convinced available self-accusation of the client, not only has the right to take on business a legal position, other than a position of the suspect (accused) but, and is obliged to take such position as it has to protect exclusively legitimate interests of the suspect (accused). Only in this case its duty on protection of legitimate interests of the suspect (accused) will be fulfilled. 16. On the basis of the analysis operating criminally - the procedural legislation of the Republic of Kazakhstan it is considered expedient, to make corresponding changes in (item 3 of Art. 15) the Law RK «About Lawyer Activity» on inadmissibility of disclosure by the lawyer of the data being lawyer secret, without additional definition of these data as reported to the lawyer exclusively the client. At such approach in case of the prevention of the lawyer of inadmissibility of disclosure of data of preliminary investigation (subscription confiscation), all data known to the defender making secrecy of the investigation, will be at the same time and lawyer secret. That in turn, will allow not to consider data messages of preliminary investigation to the assistant attorneys, obliged to keep lawyer secret as disclosure of data of preliminary investigation.

Conclusion

17. Necessary and sufficient components of a qualitative legal aid is the qualification and integrity characteristic. Discrepancy of a legal aid at least to one of these requirements testifies to non-execution or inadequate execution by the lawyer - the defender of the duties assigned to it. 18. The provisions of the Law RK «About Lawyer Activity» defining that lawyer activity is carried out only on the basis of the agreement between the lawyer and the client, need specification as actually the defender can be appointed to stages of preliminary investigation. In such situation the defender will render a legal aid to the client and without conclusion of agreement about rendering a legal aid. Thus, now provisions (item 1 of Art. 5) Law RK «About Lawyer Activity» don’t conform to requirements of the existing Criminal Procedure Code of RK. Research of procedural bases of activity of the lawyer – the defender on preliminary investigation on criminal cases generated a number of the topical issues needing additional scientific development, but, unfortunately, beyond the research conducted by us. It is necessary to define, mechanisms of responsibility how existing now for a low-quality legal aid are applicable to the person which isn’t possessing the status of the lawyer, but participating in judicial stages of criminal trial as the defender. The question of demands the additional analysis, whether has the person acting as the defender in criminal trial, but not being the lawyer, it is right or it, like the lawyer - the defender, it is allocated with powers, as means of execution of the duties. Not clearly position, whether duties of the lawyer defender coincide with duties of the defender who isn’t the lawyer? It is thought that answers to these and many other questions which are inevitably resulting natural and continuous development of the criminal procedure legislation, will be able to give further researches. As a whole, recognition of legal responsibility of the defender by the integral element of its legal status, in aggregate with the detailed analysis of legal essence and interconditionality of duties and powers of the defender, allowed to create harmonious model of legal status of the defender.

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In our opinion, conclusions and offers of the conducted research will promote further development of legal regulation criminally - procedural activity of the defender at a stage of preliminary investigation. It is difficult to overestimate value of such development as criminally - procedural activity of the defender makes an essential contribution to performance of problems of criminal legal proceedings as a whole and in ensuring the rights and legitimate interests of persons concerning which criminal prosecution, in particular is carried out.

CONTENT INTRODUCTION ...........................................................................3 CHAPTER 1 1.1 Formation and development of institute of protection in criminal legal proceedings .......................................................5 1.2 The status of the lawyer – the defender at a stage of preliminary investigation ...........................................................13 1.3 Subject and limits of activity of the defender at a stage of preliminary investigation ........................................38 1.4 Problems of definition of a position the defender on criminal case ....................................................45 CHAPTER 2 ACTIVITY OF THE LAWYER DEFENDER BY PRODUCTION OF PROCEDURAL AND INVESTIGATIVE ACTIONS ..............................54 2.1 Activity of the defender by production of procedural and investigative actions .....................................54 2.2 Activity of the lawyer defender at permission of questions of application of measures of restraint ............................................64 2.3 Activities of the defender for proof on preliminary investigation ..........................................................72 CHAPTER 3 SINGLE QUESTIONS OF PARTICIPATION OF THE LAWYER THE DEFENDER ON PRELIMINARY INVESTIGATION .......................103 3.1 Activity of the lawyer - the defender in criminal trial in foreign countries ...............................................103 3.2 Ethical bases of activity of the lawyer - the defender at a stage of preliminary investigation ...................111 CONCLUSION .............................................................................114

Учебное издание

The lawyer at a stage preliminary investigation Compiler Nurmaganbet Ermek Talantuly

Education manuel Выпускающий редактор Г. Бекбердиева Компьютерная верстка А. Маханбетжановой Дизайн обложки А. Маханбетжановой

ИБ № 7607 Подписано в печать 06.11.14. Формат 60х84 1/16. Бумага офсетная. Печать цифровая. Объем 10.3 п.л. Тираж 500 экз. Заказ № 2236 Издательский дом «Қазақ университетi» Казахского национального университета им. аль-Фараби. 050040, г. Алматы, пр. аль-Фараби, 71. КазНУ. Отпечатано в типографии издательского дома «Қазақ университетi».