Defense of the dissertation of Dalmatov Kanatai Zhorabekovich for the degree of Doctor of Philosophy (PhD) in the educational program «8D04208 - Current trends in the development of Kazakh law»
L.N. Gumilyov Eurasian National University, a dissertation defense for the degree of Doctor of Philosophy (PhD) by Dalmatov Kanatai Zhorabekovich on the topic The Institute of prosecutorial supervision at the pre-trial stage of criminal proceedings in the Republic of Kazakhstan: problems of theory and practice to the educational program «8D04208 – Current trends in the development of Kazakh law».
The dissertation was carried out at the Department of Criminal Law Disciplines of the educational institution «Alikhan Bokeikhan University».
The language of defense is russian
Official reviewers:
Mitskaya Elena Vladimirovna – Doctor of Law, Professor of the Department of Criminal Law and Criminal Procedure at the M.Auyezov South Kazakhstan University (Shymkent, Republic of Kazakhstan);
Zhanibekov Akynkozha Kalenovich – PhD, Professor, Head of the Rector's office of Auezov University (Almaty c., Republic of Kazakhstan).
Temporary members of the Dissertation Council:
Akimzhanov Talgat Kurmanovich – Doctor of Law, Professor, Director of the Institution «Scientific Research Institute of Law at the University of Turan» (Almaty c., Republic of Kazakhstan);
Wang Hong-wei – PhD, Dean of the School of Law, Faculty of Social Sciences and Humanities, Harbin Polytechnic University (Harbin c., China);
Bugybai Dina Bugybaikyzy – Candidate of Law, Associate Professor of the Department of Jurisprudence at the Caspian University of Technology and Engineering named after Sh. Yesenova (Aktau c., Republic of Kazakhstan).
Scientific consultants:
Sabitov Serik Mukhametkazinovich – PhD, Dean of the Faculty of Law «Alikhan Bokeikhan University» (Semey, Republic of Kazakhstan);
Rusman Galina Sergeevna - Doctor of Law, Head of the Department of Criminal Procedure, Criminalistics and Forensic Examination at South Ural State University (Chelyabinsk, Russian Federation).
The defense will take place on June 30, 2025, at 11:00 AM in the Dissertation Council for the training direction «8D042 – Law» in the educational program «8D04208 – Current trends in the development of Kazakh law» of L.N. Gumilyov Eurasian National University. Conducting a meeting of the dissertation council in a mixed (offline and online) format.
Link: https://clck.ru/3MC4Vx
Address: Astana city, K.Satpayev street, 2, Main building, room 302.
Abstract (English):Abstract to the dissertation research: «The Institute of prosecutorial supervision at the pre-trial stage of criminal proceedings in the Republic of Kazakhstan: problems of theory and practice», submitted for the required PhD degree in the educational program 6D030100 – «Jurisprudence» The purpose of the dissertation research: is to study the basics of prosecutorial supervision at the pre-trial stage of the criminal process, taking into account modern reforms and changes in the legislation of the Republic of Kazakhstan, based on achievements in the fields of constitutional law, criminal procedure and the theory of prosecutorial supervision. Research objectives: 1) to analyze the scientific elaboration of the problems of prosecutorial supervision in this area, to identify existing gaps and contradictions in theoretical approaches; 2) to study the retrospective of the evolution of the prosecutor's office and supervisory activities, to identify the key stages of reform and their impact on practice; 3) to investigate the place and role of the prosecutor's office in the system of law enforcement and other government agencies in terms of ensuring legality at the pre-trial stage of the criminal process, to assess their impact on the effectiveness of the investigation of crimes; 4) to conduct an analysis of the supervision of to identify legal control mechanisms, their impact on the protection of citizens' rights and compliance with international standards; 5) determine the impact of judicial control on prosecutorial supervision, analyze the mechanisms of their interaction, identify possible conflicts and suggest ways to eliminate them; 6) assess the impact of ongoing reforms on the effectiveness of prosecutorial supervision, study law enforcement practice, identify existing problems and propose specific measures to eliminate them: analyze changes in legislation concerning the powers of the prosecutor's office; investigate the impact of reforms on the mechanisms for protecting citizens' rights at the pre-trial stage; to identify new tools and practices of prosecutorial supervision that have emerged as a result of the reforms; 7) develop practical recommendations for optimizing the activities of the prosecutor's office at the pre-trial stage of the criminal process, including improving legislative regulation, procedural mechanisms and organizational approaches: propose ways to improve prosecutorial supervision in the light of reforms; develop recommendations to strengthen the independence and effectiveness of the prosecutor's office; justify the need for additional legislative changes. Research methods: general scientific dialectical, historical-legal, logical-legal, comparative-legal, system-structural. The main provisions (proven scientific hypotheses and other conclusions that are new knowledge) to be defended: 1. The high public demand for ensuring the rule of law and justice has become a determining factor in political and legal reforms to constitutionalize criminal legislation. The constitutional reform of the Prosecutor's Office has taken a special place in this process. At the request of the General Prosecutor, the Constitutional Court may review all regulatory legal acts, including the norms of criminal and criminal procedure legislation, for compliance with the Constitution of Kazakhstan. At the same time, the influence of the prosecutor's office on public relations in this case is enormous, since the normative decisions of the Constitutional Court have the legal force of the relevant norms of the Constitution. With regard to the prosecutor's participation directly in the criminal process, an important feature is the efficiency of prosecutorial supervision. This distinguishes the prosecutor from other subjects of ensuring constitutional legality in criminal proceedings - the Parliament, the Constitutional Court, the courts, the Commissioner for Human Rights. As a special institution for filtering procedural decisions to ensure that citizens' constitutional rights are respected and protected, prosecutorial supervision ensures that identified violations are immediately stopped and those responsible are held accountable. In our opinion, it is precisely due to the ability of prosecutors to quickly eliminate offenses that increased expectations are placed on prosecutorial supervision during the pre-trial stage of the criminal process. This is associated with criticism from society as a whole and individual participant in the criminal process in cases where their expectations are not met. 2. The reform of the Prosecutor's Office, carried out considering international standards and expressed in the amendments to the Constitution and the adoption of the Constitutional Act «On the Prosecutor's Office», undoubtedly strengthened the functional independence of the prosecutor's Office. This has created the basis for ensuring the fairness of trials and guaranteeing access to justice. Although the Prosecutor's office is not included in a separate section of the Constitution of Kazakhstan, a separate mention of the Prosecutor's office is in the title of section VII « Courts and justice. Office of the Prosecutor. Human Rights Commissioner» significantly strengthens her constitutional status and role in the mechanism of ensuring legality. 3. By exercising supreme supervision over the precise and uniform application of laws at the pre-trial stage of criminal proceedings, the prosecutor exerts significant influence on other areas of public relations. When properly organized, the role of prosecutorial supervision goes beyond the criminal process, creating a multiplier effect in society's perception of justice and the rule of law. This effect is manifested primarily in the fact that the prosecutor's work influences the formation of the ideology of law and order in general, strengthening public confidence in the government, and citizens' faith in a just and rule-of-law state. The credibility of the Prosecutor's Office is based on how prosecutors exercise the powers granted to them by law. This is most clearly manifested in the criminal process, when a person is in particularly dire need of state authority capable of protecting him from unfounded accusations and other offenses. 4. In order to consider information about all the alleged crimes and subsequent procedural actions, to ensure transparency, consistency and control at the investigation stage, it seems necessary to form a special commission in each criminal prosecution body to control accounting and registration discipline, the model provision of which should be approved by order of the General Prosecutor. This will help ensure the rule of law in this area and prevent the facts of deliberate concealment of criminal offenses. 5. In order to improve the quality and expand the scope of the prosecutor's written instructions aimed at ensuring legality and protecting the constitutional rights of citizens, paragraph 7) of the first part of Article 193 of the CPC is proposed to be worded as follows: «7) in cases and in accordance with the procedure established by this Code, gives written instructions on attaching the results of the NID to the materials of the pre-trial investigation, ORD, the search for persons who have committed a crime». 6. Considering the increased risks of violation of the constitutional rights of citizens before sentencing, we consider it necessary in Article 7 of the CPC to consolidate the concept of «detention» as follows: «Detention is a preventive measure that is applied with court approval to temporarily restrict the freedom of a suspect or accused in the cases provided for by this Code and within the time limits specified by act or by sentence». 7. Given the lack of uniformity in understanding the content of judicial control, it seems appropriate to define in Article 7 of the CPC the concept of judicial control in pre–trial proceedings and formulate it as follows: «Judicial control at the stage of pre-trial proceedings is the activity of the court in pre-trial proceedings aimed at verifying the legality and validity of actions and decisions of authorities (officials) criminal prosecution». Description of the main research results: 1. With the entry of Kazakhstan into the Russian Empire in the 18th century, the jurisdiction of Russian acts extended to its territory. Given the epistemological connections, the doctrine of prosecutorial supervision was refracted depending on the existing system in Russia, the USSR as a whole and the Kazakh SSR as an autonomous entity. Several key trends can be identified that characterize the development of supervisory activities: increasing the autonomy of supervision by separating it from the functions of the judiciary; separating the functions of supervision and investigation of criminal cases; the coordinating role of the prosecutor in combating crime. 2. The high public demand for ensuring the rule of law and justice has become a determining factor in political and legal reforms to constitutionalize criminal legislation. The constitutional reform of the Prosecutor's Office has taken a special place in this process. At the request of the General Prosecutor, the Constitutional Court may review all regulatory legal acts, including the norms of criminal and criminal procedure legislation, for compliance with the Constitution of Kazakhstan. At the same time, the influence of the prosecutor's office on public relations in this case is enormous, since the normative decisions of the Constitutional Court have the legal force of the relevant norms of the Constitution. With regard to the prosecutor's participation directly in the criminal process, an important feature is the efficiency of prosecutorial supervision. This distinguishes the prosecutor from other subjects of ensuring constitutional legality in criminal proceedings - the Parliament, the Constitutional Court, the courts, the Commissioner for Human Rights. As a special institution for filtering procedural decisions to ensure that citizens' constitutional rights are respected and protected, prosecutorial supervision ensures that identified violations are immediately stopped and those responsible are held accountable. In our opinion, it is precisely due to the ability of prosecutors to quickly eliminate offenses that increased expectations are placed on prosecutorial supervision during the pre-trial stage of the criminal process. This is associated with criticism from society as a whole and individual participant in the criminal process in cases where their expectations are not met. 3. By exercising supreme supervision over the accurate and uniform application of acts at the pre-trial stage of criminal proceedings, the prosecutor exerts significant influence on other areas of public relations. When properly organized, the role of prosecutorial supervision goes beyond the criminal process, creating a multiplier effect in society's perception of justice and the rule of law. This effect is manifested primarily in the fact that the prosecutor's work influences the formation of the ideology of law and order in general, strengthening public confidence in the government, and citizens' faith in a just and rule-of-law state. The credibility of the Prosecutor's Office is based on how prosecutors exercise the powers granted to them by law. This is most clearly manifested in the criminal process, when a person is in particularly dire need of state authority capable of protecting him from unfounded accusations and other offenses. 4. In recent years, the state of legality in the field of compliance with accounting and registration discipline for criminal offenses has been deteriorating. The number of concealed criminal offenses has increased almost 5 times in 8 years. In our opinion, this situation is related to increased prosecutorial supervision, which has revealed systemic problems and a weakening of departmental control. In this regard, it is proposed to return to the previous effective system – the functioning of a special commission for monitoring accounting and registration discipline in each criminal prosecution body, the model provision of which should be approved by order of the General Prosecutor. This will help ensure the rule of law in this area and prevent the facts of deliberate concealment of criminal offenses. 5. The tendency to significantly expand the functionality of the prosecutor's office in the criminal process (the introduction of the institute of a procedural prosecutor, a three-tier model of criminal proceedings, the actual leadership of the prosecutor in the investigation of criminal cases) indicates an unconditional strengthening of the prosecutor's role in this area, since in addition to purely supervisory tools, he becomes the main figure determining the course and progress of the investigation of a criminal case. 6. Based on the differentiation of prosecutorial activities in the main three areas (supervision of the legality of the investigation, criminal prosecution and procedural management of the investigation), it is proposed to provide for an appropriate gradation of the prosecutor's powers in the criminal process. At the same time, we suppose that the basis of prosecutorial activity in criminal proceedings is the supervision of criminal prosecution, and secondary functions should be considered criminal prosecution carried out by the prosecutor, as well as procedural guidance. 7. The expansion of judicial control should not replace full-fledged prosecutorial supervision. The prosecutor is obliged to verify the legality of all investigative actions and decisions of the criminal prosecution body, including those that can be appealed in court. 8. In order to improve the quality and expand the scope of the prosecutor's written instructions aimed at ensuring legality and protecting the constitutional rights of citizens, paragraph 7) of the first part of Article 193 of the CPC is proposed to be worded as follows: «7) in cases and in accordance with the procedure established by this Code, give written instructions on attaching to the materials of the pre-trial investigation the results of the CIA’s, OI, and the search for persons who have committed a crime». 9. Considering the increased risks of violation of the constitutional rights of citizens before sentencing, we consider it necessary to consolidate the concept of «detention» in Article 7 of the CPC as follows: «Detention is a preventive measure that is applied with court approval to temporarily restrict the freedom of a suspect or accused in the cases provided for by this Code and within the time limits specified by act or by sentence»" 10. Given the lack of uniformity in understanding the content of judicial control, it seems appropriate to define in Article 7 of the CPC the concept of judicial control in pre–trial proceedings and formulate it as follows: «Judicial control at the stage of pre-trial proceedings is the activity of the court in pre-trial proceedings aimed at verifying the legality and validity of actions and decisions of authorities (officials) criminal prosecution». 11. The reform of the Prosecutor's Office, carried out considering international standards and expressed in the amendments to the Constitution and the adoption of the Constitutional Act «On the Prosecutor's Office», undoubtedly strengthened the functional independence of the prosecutor's Office. This has created the basis for ensuring the fairness of trials and guaranteeing access to justice. Although the Prosecutor's office is not included in a separate section of the Constitution of Kazakhstan, a separate mention of the Prosecutor's office is in the title of section VII «Courts and justice. Office of the Prosecutor. Human Rights Commissioner» significantly strengthens her constitutional status and role in the mechanism of ensuring legality. Substantiation of the novelty and importance of the results obtained: Despite the sufficient volume of specialized literature and scientific publications on improving the activities of the prosecutor in criminal proceedings, it should be noted that the issues and problems presented in the format of the dissertation research have not yet been fully disclosed. That is, if these issues were previously studied traditionally, namely by examining the functional principles of prosecutorial supervision as a fundamental criterion, now the author suggests shifting the focus, namely, to focus on the status and powers of the prosecutor. From this point of view, new facets of the problems of ensuring legality in criminal proceedings are revealed. Compliance with scientific development directions or government programs: The dissertation corresponds to the development of the science of criminal procedure and prosecutorial activity. The research corresponds to the key strategic directions of the development of science and state policy of Kazakhstan in the field of criminal justice, protection of human rights and improvement of prosecutorial supervision. Compliance with state programs: National Development Plan of the Republic of Kazakhstan until 2029; Concept of Legal Policy of the Republic of Kazakhstan until 2030; Action Plan in the field of human rights and the rule of law of 8 December, 2023. Description of the doctoral student in preparation for every publication: The doctoral student has worked on a full cycle of scientific work – from post-research problems and methodology to the formation of publications and their publications, which plays its leading role in the study of published two scientific articles in journals, in the database Scopus: International Journal of innovation, creativity and change. www.ijicc.net Volume 7, Issue 12, 2019 on topic: «Arrest as a Form of Punishment: Criminal Law and Criminal Executive Aspects Prosecutor Supervision»; Access to Justice in Eastern Europe, 2024, 7(3), pp. 63-90 «Addressing Human Rights Violations in the Criminal Justice System of Kazakhstan: The role of the Prosecutor's Office and a Call for Legislative Reforms» (doi.org/10.33327/AJEE-18-7.3-a000323); three scientific articles recommended by CQASHE RoK: «1) modern society, procedural status and prospects for the development of the prosecutor's Office of Kazakhstan»: Science and life of Kazakhstan. International scientific journal, No. 1 (75), 2019, P. 147-152; 2) «Criminal Procedure Code of the Republic of Kazakhstan and features of the legal basis for the activities of the prosecutor's office»: Science and life of Kazakhstan. International scientific journal, No. 1/2, 2020, P. 100-103; 3) «Law and prosecutor's office in Kazakhstan in the Russian Empire in the second half of the XIX century»: Bulletin of the Institute of law and law information of the Republic of Kazakhstan. Scientific Journal No. 1 (59), 2020. Also published: scientific article in the framework of the international scientific conference SCIENTIFIC HORIZON in THE CONTEXT of SOCIAL CRISES: Proceedings of the 3rd International Scientific and Practical Conference, TOKYO, JAPAN 16-18.04.2020 on topic: «Management and practice activities of the prosecutor's office anti-terrorism»; scientific article in materials of the international scientific and practical conference «N.A. Nazarbayev's contribution to global security», Astana, 2018, on the topic: « Legal regulation of international cooperation in the fight against crime»; tutorial on the topic: «The role of the Prosecutor's Office in law enforcement agencies and the judicial system of the Republic of Kazakhstan».
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