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Institute of witness proposed to be reviewed; participation of witnesses will be mandatory not in all investigatory actions

24.11.2017 15:46

On November 23, 2017 the RA Government approved of the RA draft law on «Amendments in Criminal Procedure Code» worked out by the RA Investigative Committee which envisages limiting the participation of witnesses in investigatory actions.

In the result of examination of international experience and the problems emerged during investigatory actions conducted in the presence of the witness the Investigative Committee proposed to consider the participation of witnesses mandatory only in certain investigatory actions, in a number of investigatory actions their participation will be excluded and in some cases video recording will be used.  

Thus, the draft envisages that the investigator, the inquest body invites witnesses only to conduction of investigatory experimentation, recognition of a person or items, search, confiscation, inspection.

At the same time the exceptions in which the participation of witnesses is not envisaged are defined, they are;

1)   the document or item is inspected in the presence of a physical person or a legal entity or his/its representative and the document (or its copy) or the item is attached to the criminal case.

2)   the documents on decryptions of incoming and/or outgoing phone calls, short messages (sms) received from communication operators in the order defined by law, subscribers' data, addresses of antenna stations having provided the phone calls, or their copies are attached to the criminal case

3)   the recordings obtained in the result of actions envisaged by the Article 241 of RA Criminal Procedure Code, the Point 12 of the Part 1 of the Article 14 of the RA Law «On Operative-Intelligence Activity» are attached to the criminal case.

4)   in case of confiscation and inspection of correspondence.

The draft proposes to consider video recording for some investigatory actions mandatory instead of inviting witnesses. For example, it is proposed to fix the process and the results of presenting the body for recognition by using video recording.   

Specialists and experts who are not interested in the outcome of the case take part in the inspection, exhumation, getting a sample from a person.

However, there are investigatory actions in which no witness participates or their process is not video recorded. These investigatory actions include the cases when the documents, items are attached to the criminal case and can be inspected by the investigative body in each case. In such conditions the necessity of video recording, or, moreover, inspecting them in the presence of witness disappears. They are;

-      Inspection of documents and items with participation of a person having submitted them,

-      Inspecting and listening to the record

-      Inspection and confiscation of correspondence (specialists who are not interested in the outcome of the case, communication officers participate in these investigatory actions).

It should be noted that standards not related to the process of video recording have also been separated. Particularly, the inquest body or the investigator checks the devices before using technical means. Video recording itself should be made from the moment the investigatory action starts, without interruption with the exception of cases of unpredictable technical malfunction or if there are other objective causes.  

In case video recording is interrupted the investigatory action is interrupted and a separate protocol on it is formed where the interruption causes are mentioned. Conduction of investigatory action goes on from the moment the video recording restarts. Before it, the inquest body or the investigator takes measures to maintain the site of conduction of investigatory action, traces and items. In case of video recording the integrity of the process of investigatory action, visibility (involvement, light and so on) and audibility is provided. The materials of video recording are not subject to mounting or other changes.

It is remarkable that international practice shows that the institute of witnesses is not so efficient itself and sometimes it bears a formal character. There is no institute of witnesses in majority of countries, particularly in France, Canada, Japan, the USA, China, and Great Britain. Pursuant to criminal procedure legislation of the Russian Federation, Georgia, Kazakhstan the number of investigatory actions conducted with participation of witnesses has considerably been reduced and pursuant to the new Criminal Procedure Code of Kyrgyzstan the institute of witness has been removed.

 

 

 


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