Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)


Writ Proceedings in Criminal Cases in the Context of Comparative Jurisprudence

Author(s): Lyazzat Nurlumbayeva, Arstan Akhpanov, Bakitkul Sembekova, Elnara Ashimova, Nurgul Mergembaeva

Kazakh authors in the article carried out the comparative-legal analysis of the institution of writ proceedings in the criminal procedure. This institution started to operate in Kazakhstan in 2018. It was introduced into the Code of Criminal Procedure of the Republic of Kazakhstan by the Law "On amendments and additions to certain legislative acts of the Republic of Kazakhstan on the issues of modernization of procedural foundations of law enforcement activities" of December 1, 2017. The need to introduce such institution is due to the need to simplify the procedural form, speed up the time frame and procedural economy in cases of criminal misdemeanors and minor offences. At the same time, the norms in a short period of time, regulating the procedure for consideration of criminal cases in the form of order, have been transformed in domestic legislation with regard to the grounds and consequences of the application of the institution. It should be noted that in law enforcement practice, the institution of writ proceedings is not fully used by law enforcement and judicial authorities. Kazakhstan’s Institution is based on positive foreign experience of Germany, Estonia and some other countries. Despite the fact that the above-mentioned institution is very successful abroad, there are a number of shortcomings in Kazakhstan, which indicates that the potential has not yet been revealed and the made changes are premature. In this regard, the authors analyzed the experience of Germany, Switzerland, France, Estonia, Latvia and Kazakhstan, which resulted in conclusions about the reception and adaptation of certain provisions. The research showed that there are required introduction of amendments and additions to domestic legislation which is allowed: to eliminate the possibility of illegal and unlawful restriction of the appropriate rights and expansion of certain obligations of the subject of offense, including by introducing the norm on the possibility of considering the criminal case in the ordinary manner after the decision in the form of order; to consider, according to the Germany’s experience, the possibility of a more flexible system of payment of the fine as the main form of punishment.

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