15.12.2009
In the Supreme Court the next plenary session on which projects of decisions concerning application of the legislation on joint-stock companies have been presented, and also observance of personal freedom and inviolability of advantage of the person, counteraction to tortures, violence, references another severe or humiliating human advantage or punishments has taken place.
Abdrashid Zhukenov the chairman of board on criminal cases expressed special interest. As he said, Kazakhstan, having joined in 1998 to the international Convention against tortures and kinds of the reference another severe, brutal or humiliating advantage and punishment, and also having ratified the Optional protocol to the given Convention in 2008, has incurred obligations on prevention in the territory of tortures, the severe, humiliating reference, to realisation of effective investigation under complaints about application of tortures and other infringements of human rights, to criminal prosecution guilty, and also to granting of indemnification by the victim. In these purposes, in 2002 in the republic Criminal code áûëàà the special norm - article 347-1 CL classifying tortures as a kind of a crime is entered.
In it tortures are qualified as the deliberate causing of physical and mental sufferings made by the inspector, the person who is carrying out inquiry, or other official on purpose to receive from a person who was tortured or the data or recognition third party or to punish it for action which was made by it or of which fulfilment it is suspected, and also to intimidate or force it or the third party, or for any reason based on discrimination of any character.
According to official statistical data, under specified criminal article by republic courts it is considered in 2007 - concerning 8 persons, in 2008 - concerning two persons, current year concerning one person. As an example for A.Zhukenov has given an example the judgement which has been taken out on sensational business in the relation two inspectors of criminal police of Balkhash. Policemen have been condemned by a sentence of court everyone by seven months of imprisonment that subjected to tortures suspected of theft.
In overwhelming majority, the lecturer has explained, application of violence concerning citizens for the purpose of reception from them data in practice was qualified under article 308 CL as power excess. According to data of legal statistics, in 2007 under this article 67 persons, in 2008 - 75 persons, in leaving year - 64 persons are condemned.
A.Zhukenov has noticed, that the developed practice - qualifications of tortures by power excess - is unreasonable. Has as an example resulted the case which has occurred in 2008 at station "Ekibastuz". Again two inspectors tried to beat out from the arrested person in suspicion of theft grateful indications illegal by. Both have been brought to court under article 308 CL and 347-1CL, however are condemned only for power excess by three years everyone. And under article 347-1CL for damaged tortures business has been stopped in connection with refusal of the state accuser of charge which as he has counted, is made unduly.
Discussion and the judiciary practice analysis have revealed necessity of working out of the presented project of the standard decision.
Generalization has shown, that law infringement was more often supposed at early stages of criminal trial –investigative check, detention of the suspect and its interrogation. According to data of the State Office of Public Prosecutor, during checks by public prosecutors are revealed in 2008 850 persons who illegally contained in office offices of bodies of criminal prosecution, for 9 months of current year 796 persons are revealed.
The standard decision has made explanations on correct and strict application of the norms regulating detention of a crime suspected of fulfillment. Also in the decision the questions connected with the appropriate notice of relatives of the suspect about its detention are explained. The big attention in the decision project is given remedial mechanisms of consideration by the public prosecutor and court of complaints about application of the tortures, arrived from arrested persons or the arrested persons.
In point 14 of the project of the decision the important explanation that «if the defendant in judicial session declares that indications have been given them under physical or mental violence from body of criminal prosecution is given, it has not been acquainted with the right, to invite the defender, not to give the evidence against himself, and his interrogation was spent without participation of the defender challenged indications should admit inadmissible as proofs. Presence of such explanation, according to A.Zhukenov, will remove many questions arising in judiciary practice at an estimation of proofs, disciplines bodies of criminal prosecution on observance of all instructions CPC.
Separate points of the decision regulate questions of correct qualification of structures of crimes at a competition of the norms providing responsibility for tortures, excess of the power and a trespass to health.
The lecturer has reminded, that article 1 of the Convention against tortures and kinds of the reference another severe, brutal or humiliating advantage and punishment recognises, that for application of tortures except the executor of responsibility the person who incited tortures is subject also or tortures were applied from its permission or a tacit consent. The internal criminal legislation also provides responsibility of the persons who are accomplices. In the decision project these questions are explained also.
Also the attention is paid to an explanation of such important questions, as rehabilitation of victims of tortures, compensation of property and moral harm by it, and also questions of preventive maintenance of tortures by finding-out by courts of the reasons and conditions of their occurrence and removal of private decisions to bodies of criminal prosecution, and also statement of questions on bringing to account of the persons who have admitted similar criminals.
Also during plenary session the report of the judge of Supreme Court Bahytzhan Zhakupov who has presented the project of the standard decision on joint-stock companies has been heard. The Project explains the basic moments of application of the legislation at the resolution of disputes about observance of an order of creation, activity, reorganization and joint-stock company liquidation; about the rights and duties of shareholders, and also measures on protection of their rights and interests; about the competence, an order of formation and functioning of bodies of joint-stock company; about powers, an order of election and responsibility of its officials.
After entering of the amendments stated during session and additions the presented projects of standard decisions will be finished and confirmed in the near future.
