Discretional authorities of the lawyer in pre-trial investigation of criminal cases

Abstract

The study exposed the problematic issues that arise in the theory of the criminal process as a result of the expansion of the scope of application of the principle of competition and equality of the parties at the time of the preliminary investigation as the main form of pre-trial investigation. The authors of the article pursued the goal of showing the general state of advocacy activities of lawyers in comparison with similar activitiy in foreign and neighboring countries, identification of problematic issues and gaps in the legislation, and formulation of mechanisms aimed at its further improvement. When writing the article, the provisions of general scientific methods of knowledge, as well as private-scientific methods of historical, systemic, relatively legal analysis and methods of sociological research, based on the works of scientists of both the Soviet period and modern Kazakhstan and Russian lawyers were used. The proposals and conclusions obtained in the course of the study are based on a study of the Constitution of the Republic of Kazakhstan, the principles, basic institutions and norms of criminal procedure law of the Republic of Kazakhstan and a number of foreign states. In particular, the problem of equality of the parties in the pre-trial stages is raised, the possibilities of giving lawyers the right to independently collect evidence in the pre-trial stages are shown, and scientific views are given on this matter. Particular attention is paid to the right of the defense lawyer for special evidence, which he has the right not to present to the criminal investigating authority at the time of completion of the investigation and familiarization with the materials of the criminal case. As a result, the authors propose a number of additions and changes to the existing criminal procedural legislation relating to the creation of additional guarantees of the rights of the individual, taking into account the public interest of the state bodies of pre-trial investigation. They proposed possible solutions to the problems they considered by implementing certain criminal procedures from the legislation of the countries of near and far abroad and making appropriate changes and amendments to the current Code of Criminal Procedure of the Republic of Kazakhstan. This justifies the conclusion that the improvement of advocacy should go not only by expanding their powers, but also by creating guarantees that limit the activities of lawyers in favor of the public interest of the criminal prosecution authorities, since otherwise, it may lead to an internal conflict of interests between the parties to the prosecution and the defense.