Saratov State Law Academy (kafedra ugolovnogo processa, professor)
employee
Russian Federation
employee
UDC 343.12
By using the comparative legal method, the authors of the article compare the procedural status of a new participant in the Kazakh criminal proceeding — a witness having a right to be defended — with the factual position of such a participant in the Russian criminal procedure as a person in respect of whom a crime report is being verified. Accordingly, the provisions of the Criminal Procedure Code of the Republic of Kazakhstan are analyzed, determining the procedural status of the new participant, his procedural rights, as well as the grounds on which this or that person is positioned as a witness having a right to be defended. It is noted, that the proce-dural rights granted to this subject distinguish him from an "ordinary" witness, since they are aimed at protecting his procedural interest, similar to the procedural interest of a suspect. The Criminal Procedure Code of Kazakh-stan doesn’t detail the procedure for granting a person the status of a "witness having a right to be defended", including the fact that it doesn't prescribe the subjects conducting pre-trial proceedings to make / issue a certain procedural decision (resolution), which would reflect the grounds for granting a person the mentioned status. In this regard, the authors propose to normatively define the status of the mentioned subject differently, namely, to use the term "a person being under suspicion" to designate him in the law, since the Kazakh legisla-tor grants him procedural rights to protect himself from suspicions / charges brought against him. The procedural status of "a person being under suspicion" can be quite justifiably used in Russian criminal proceedings in relation to a person in respect of whom a statement or report of a crime is being checked. The decision on the involvement of a person in a crime through verification in accordance with Article 144 of the Criminal Procedure Code of the Russian Federation can be considered as a stage of bringing an initial suspicion / charge, since the law lets for the defense attorney to participate in this stage of criminal procedural activity. Based on this fact, the authors propose to introduce a new point containing the concept of "a person being under suspicion" into Art. 5 of the Criminal Procedure Code of the Russian Federation, as well as to specify a mentioned person in a set of individuals participating in the preliminary investigation in part 1.1 of Art. 144 of this Code.
procedural interest, witness, suspect, suspicion, "a person being under suspicion", the right to be defended
1. Smolkova I. V. Is a person being under sus-picion necessary in the criminal proceedings? Vestnik of the East Siberian Institute of the Ministry of Internal Affairs of Russia, 70—77, 2019. (In Russ.).
2. Chupilkin Yu. V. Legal status of a person being under suspicion in committing a crime. In: Topical problems of judicial, law enforcement, human rights, criminal procedure activities and national security. Materials of the International research and practical conference, dedicated to the 50th anniversary of the establishment of the department of criminal procedure. In 2 parts. Part 2. Red. by V. A. Semenov. Krasnodar: KubSU; 313—319, 2022. (In Russ.).
3. Ashirbekova M. T. On ensuring individual rights during the verification of a crime report. In: Crime control and ensuring individual rights as priorities of the criminal procedure policy. Saratov: the Saratov State Law Academy; 2021: 14—19. (In Russ.).
4. Frantsiforov Yu. V., Tsarev Yu. N. Detention of a person as a suspect: contradictions between legislative regulation and practice. Bulletin of the Saratov State Law Academy, 204—211, 2024. (In Russ.).
