The Issues of Legal Status of a Witness under the Legislation of the Republic of Kazakhstan

  •  Alexandr S. Smyshlyayev    


This article discusses the preliminary investigation problems related to the presence of witnesses in the course ofthe investigation. At present, the institution of witnesses exists only in the legal system of post-Soviet states andin foreign countries, in order to secure the progress and results of investigative activities the technical means areused for a long time. Historical analysis of the emergence of witnesses in criminal proceedings suggests that theinstitution of the witnesses has existed since the Middle Ages, to this date, it is not a special significance, as inthe past century, and is a relic of an outdated legal system. In writing this report, the author pursued thefollowing objectives: to examine and analyze contemporary issues in the post-Soviet institution of witnesses;based on the experience of law enforcement agencies of foreign countries, as well as several works of scientistsjustify the possibility of replacing of witnesses in the investigation with the use of technical fixation means; tomake an analysis of the rules of criminal legislation of the Republic of Kazakhstan regulating the legal status of awitness, and to formulate suggestions for the improvement of these rules. As a result of the research, the authorhas come to the following conclusions: in the practice of criminal prosecution bodies of the Republic ofKazakhstan and a number of neighboring states there have been accumulated a lot of problems associated withthe presence of witnesses in the conduct of investigative activities; in order to eliminate these problems we needto make a number of amendments and additions to the Criminal Procedure Code: Article 86 of the CriminalProcedure Code of the Republic of Kazakhstan is necessary to specify the time of legal status gaining by awitness, as well as to differentiate the responsibility for his/her failure within procedural obligations; in order toprevent violations of the constitutional rights of citizens, it is necessary to provide a legislative involvement ofwitnesses to participate in the investigation only with their consent; given the experience of foreign countries, infuture, Kazakhstan legislator needs to gradually withdraw from the witnesses’ participation in the conduct ofinvestigative actions, replacing it with the use of technical evidence fixation means.

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