The institution of secret investigative actions, the grounds and conditions for conducting, the research procedure and the procedure for using the results obtained in proving a criminal case

The criminal procedure law of the Republic of Kazakhstan is currently undergoing another stage of its development. The ongoing processes to improve judicial and law enforcement activities are direct evidence of this. The criteria for evaluating both law enforcement and judicial activities are the observance of citizens' rights, the accurate and correct application of the law, the exclusion of duplicative institutions, the creation of the necessary conditions to eliminate a judicial error, change or repeal an unfair sentence. Currently, amendments to the criminal procedure law of the Republic of Kazakhstan are being actively discussed, which have introduced a fairly large number of new terms and institutions. Against this background, it should be noted that there is an objective need and even a need for new and modern educational publications, monographs and scientific articles. N.Abdikanov's scientific and practical commentary examines a new institution for Kazakhstan to conduct covert investigative actions: the grounds and conditions for conducting research, the procedure for using the results obtained in proving a criminal case. Noteworthy are the author's conclusions that the results of a secret investigative action are not yet procedural evidence in a criminal trial, but are only data that has not been put into procedural form and has not been introduced into the criminal case as evidence.

They become evidence in a criminal case only after they are received by the investigator (inquirer), examined, recorded in the protocol, checked, evaluated in terms of admissibility, sufficiency, relevance to a particular case and recognized by the investigator (inquirer) as received in accordance with the requirements of criminal procedure legislation. In the commentary, the author compares the concept of "persons involved in criminal proceedings", introduced for the first time in legal science, with the concept of "persons involved in the case", which is important for theory and practice. After conducting research in this area, the author concluded that the circle of persons involved in the criminal process includes not only persons with procedural powers (suspects, victims), but also third parties – citizens who are not participants in the criminal process and do not have procedural powers, that is, persons who are outside of the criminal process.

The norms of the CPC establish that the sanction for conducting secret investigative actions is given only for reports and statements of crimes registered in accordance with the procedure established by the Code of Criminal Procedure, which require the immediate conduct of secret investigative actions, that is, in a criminal case that has actually been initiated. However, persons who are not recognized as participants in the process are also involved in this process. Thus, the author proves that the concept of "persons involved in criminal proceedings" does not coincide with the concept of "participants in criminal proceedings", as it includes a wider range of persons. The author has expressed an interesting idea regarding the concept of "covert entry into a residential building." In the author's opinion, the legal definition of a dwelling and dwelling is important when considering this covert investigative action. The paper provides definitions of these concepts in the norms of laws governing civil, criminal law and criminal procedural relations in the Republic of Kazakhstan. The analysis and comparison of these concepts in various branches of domestic law indicates that the definitions of the concept of "housing" are basically identical.

However, practitioners disagree on the definition of "home invasion." It follows from the meaning of part 1 of Article 25 of the Constitution of the Republic of Kazakhstan that "entering a home" is an open and public action of the pre–trial investigation authorities. The inviolability of a home is constitutionally established, and its inspection and search are allowed only in cases and in accordance with the procedure established by the criminal procedure law, openly, with publicity for the owner and the persons living in it. Therefore, in this part, the author recommends that the constitutional norm be followed and that investigative practice be conducted in an open and transparent manner, and only if it is impossible to establish information relevant to the case, that is, in exceptional cases, use other types of investigative actions. At the same time, it is necessary to take into account the presence of a certain circle of persons with privileges and immunities established by law, in conducting investigative actions in respect of whom it is necessary to be guided by the norms of international treaties, agreements, conventions, etc. As an example, the norms of the Vienna Convention on Consular Relations (1963) are given, according to which, under any circumstances, the possibility of entry or invasion is excluded to the consular premises. The receiving State is obliged to take all appropriate measures to protect the consular premises from any intrusion or damage and to prevent any disturbance of the peace of the consular institution.  Even in the event of a fire or other natural disaster requiring urgent protective measures, the authorities of the receiving State may not enter the territory of the consulate without obtaining the consent of the head of the consular institution. Consular archives and documents are inviolable at any time, regardless of their location, as well as all correspondence related to the consular institution and its functions. The value of the work lies in the analysis of the specifics of the legislative regulation of the issues under study in other countries of the post–Soviet space, which is important in comparative legal terms and provides a holistic view of criminal proceedings in the court of cassation. The fruitful development and study of the modern criminal process of the Republic of Kazakhstan is impossible without studying its historical roots.

In this regard, N. Abdikanov's book is of considerable interest. Especially because the criminal process is currently at the stage of its reform and since January 1, 2016, the procedural powers of considering cases in cassation have been transferred to the Supreme Court of the Republic of Kazakhstan. And in this case, the study of the previously existing institution of cassation consideration of cases in regional courts deserves special attention, as it provides an opportunity in the future for everyone to study all the positive and negative aspects of the stage of development of the criminal process. We are sure that the reader will find in this work a number of other noteworthy studies and conclusions. We believe that N.'s comment Abdikanova will play the role of a desk book for law students, practicing lawyers, judicial candidates, as well as for all those who are interested in criminal justice issues. 

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