The Definition, Essence, and Classification of

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Anais da Academia Brasileira de Ciencias (2018) 90(1): 745-755 (Annals of the Brazilian Academy of Sciences) Printed version ISSN 0001-3765 / Online version ISSN 1678-2690 http://scielo.br.com/en/scielo.php/script=sci_serial&pid=0001-765&nrm=iso www.scielo.br/aabc

The Definition, Essence, and Classification of Procedural Coercive Measures AKYLTAI KASSIMOV 1 and VITALIY KHAN2 1Doctor

of Juridical Sciences, Judge, Department of Criminal Procedure, Kazakh State Juridical Academy, Kazakhstan, Astana of Juridical Sciences, Department of Public Law, Rector of the Dzholdasbekov Academy of Economics and Law, Kazakhstan, Taldykorgan

2Candidate

ABSTRACT

The possibility of using coercion is, in the opinion of most researchers, an inalienable sign of the state and a guarantee of the effective operation of law as a regulator of social relations. Therefore, in the legal literature, the problem of legal coercion has always been and remains relevant. The state directs all branches of the right to expand democracy, strengthen the rule of law and order, strengthen control over crime and full use of the force of laws in this matter so that no criminal escapes punishment. In such a situation, effective organization of criminal prosecution is possible only if there are measures of state coercion at the disposal of law enforcement agencies. As a specific method of legal regulation, procedural coercion is heterogeneous and objectively includes in its scope a variety of forms and measures, through and on the basis of which the competent authorities of the state and its officials carry out a specified impact on the behavior of people for ordering, protecting, protecting or forcing out of social life of the relevant undesirable social relations. Procedural coercion, applied in concert with other procedural measures, acts as an important system-forming factor in preventing and suppressing the criminal activity of accused (suspects), contributing to the successful conduct of preliminary investigation and trial. In criminal procedure science, the most pressing problems are those related to ensuring the rights of the individual during conducting procedural actions with the use of criminal procedural coercion, since in this case the constitutional rights and freedoms of participants in criminal proceedings are more affected. Key words: criminal procedural coercion, measures of procedural coercion, classification, procedural actions.

INTRODUCTION The Constitution of the Republic of Kazakhstan recognizes and guarantees the rights and freedoms of the person which belongs to him from birth are absolute and inalienable, but their implementation must not violate the rights and freedoms of others, encroach on the constitutional order or public morality (Constitution of the Republic of Kazakhstan. Article 12 n.d.). However, the rights and freedoms of man and citizen can be limited only by laws and only to the extent necessary for the protection of the constitutional order, the protection of public order, human rights and freedoms, health and morality of the population.

Potentially every citizen is can be involved in the criminal proceeding. The general duty of the enrolled citizen is to endure such encumbrances, the necessity of which can later be undermined. We believe, like other authors, that this duty generally excludes any reimbursement for the use of coercive measures and their consequences (Kuhne 1978) Criminal justice is the most acute weapon in the fight against crime, where the interests of the individual, society and the state are most closely intertwined. More than other types of state activity, criminal justice objectively restricts the rights and freedoms of man and citizen. The reason for strong rights restriction is the need to establish the truth in a criminal case An Acad Bras Cienc (2018) 90 (1)

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for the sake of solving the criminal process tasks and achieving its goals (Criminal Procedure Code of the Republic of Kazakhstan. Article 8). Thus, the possibility of applying an imperious state power to achieve the objectives of justice is one of the foundations of its existence (Tsokolova 2008). By the degree of saturation of coercion, the criminal process ranks first among all the procedures known to the law (Petrukhin I. 1985). In the literature of the criminal procedure law of the states of Western Europe means of procedural coercion, likewise other procedural actions that restrict the rights of a person, are regarded as a general institution of measures of procedural coercion (Eser 1996; Hofmanski 1999; Orlandi 1996; Villiger 1993). The current Criminal Procedure Code of the Republic of Kazakhstan of 2014, enacted from January 1, 2015 (hereinafter referred to as the CPCRK), as well as the former (expired) CPC RK of 1997, for the convenience of law enforcement, retained the approach to allocating in its structure an independent section "Measures of procedural coercion" (Section 4). This section includes three groups of the most pronounced and often applied procedural coercive measures: "Detention of a suspect" (Chapter 17, articles 128-135); "Preventive measures" (Chapter 18, articles 136-154); "Other coercive procedural measures" (Chapter 19, Articles 155-165). These measures are applied in the presence of conditions, grounds, sequence, and order of registration defined by the criminal procedural law. Prior to the adoption of the CPC in 1997, the expression "measures of criminal procedural coercion" was of exclusively scientific importance and was used in the educational process. It is interesting that D. Duttge defines the measure of procedural coercion as a measure applied by public (state) power, the use of which to at least one person for the achievement of procedural purposes means the restriction of his rights (Duttge 1995). Apparently, by this defined that public power can apply procedural coercion. The right to apply measures of procedural coercion in the criminal procedure laws of Kazakhstan and foreign countries is granted to law enforcement bodies: police, prosecutor's An Acad Bras Cienc (2018) 90 (1)

office, and courts. However, the German CPC provides for one exception. The first part of paragraph 127 of the Criminal Procedure Code of this country allows each person (not necessarily employees of law enforcement agencies) "to detain a person caught in flagrante delicto if there is a possibility that he may abscond and there is no possibility to immediately establish his identity". This rule establishes an exception to the general rule that enforcement measures can only be used by law enforcement officials. The Criminal Procedure Code of the Republic of Kazakhstan does not provide such exception. Without falling into details of the procedural form of the measure of procedural coercion application under the CPC of the Republic of Kazakhstan, in the most general terms, the following features of this institution of the criminal process can be singled out. Firstly, measures of the procedural coercion are regulated solely by the norms of the CPC and are inherent only in the sphere of criminal justice. Secondly, all measures of procedural coercion, generally, are applied from the beginning of the pre-trial investigation, throughout the entire criminal proceedings, both before the court and in court. Thirdly, at the core of their application are significant criminal-legal and criminalprocedural conditions and grounds, the nature of which depends on the type of measure of procedural coercion and which are directly provided for by the rules of the Criminal Code and the Criminal Procedure Code of the Republic of Kazakhstan. Fourthly, along with the foregoing, the application of a specific measure of procedural coercion requires a high degree of motivation, that is, the availability of evidence to be used as a basis for its application. Fifth, measures of procedural coercion are applied by authorized officials who conduct criminal proceedings within the power and authority at the relevant stage of the criminal process. Sixth, the measures of procedural coercion, in general, are applied to the suspect, accused, defendant, convict.

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Seventh, certain types of measures of procedural coercion, and in this their feature, can be applied to the victim, witness, and other persons involved in the case. Thus, the measures of procedural coercion are nothing more than a set of procedural decisions and actions of authorities and officials conducting criminal proceedings strictly defined by the criminal procedural law, carried out in compliance with the principles and general conditions of the criminal procedure in the appropriate procedural form established by the CPC norms for effective solving the criminal process tasks of and achieving its goals. Consequently, the essence of procedural coercive measures is objectively defined and can be deduced from the purposes, grounds, and motives of application of each measure. Thus, the detention of a suspected in the commitment of a criminal offense person, being a procedural coercive measure, is applied by the criminal prosecution authority with the aim of suppress the crime and resolve the question of applying a preventive measure in the form of detention or for ensuring the criminal proceedings for which there are reasons to believe that a person may abscond or commit a more serious act (Part 1, Article 128 of the CPC). The official of the criminal prosecution authority has the right to detain a person suspected of committing a crime for which punishment can be imposed in the form of penalty of imprisonment, if one of the following grounds exists: 1) when this person is caught while committing a crime or immediately after committing it; 2) when eyewitnesses (witnesses), including victims, directly point to this person as having committed a crime or detain the person in the manner prescribed by article 130 of the Code; 3) when on this person or his clothes, with him or in his home, obvious traces of the crime are found; 4) when, in accordance with the law of the material of operational search, counter-intelligence activities and (or) secret investigative actions against a person, there are reliable data on the crime committed or being prepared for a crime. When other information to hand arouses suspicion that a person has committed an

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offence, the person may only be detained if he tries to flee or if he has no permanent abode or his identity cannot be established, or when a petition for authorization of preventive measures in the form of detention has been sent to the court (Part 2-4, article 128 of the CPС). Other goals and grounds are typical for the application of preventive measures in general and for each individual preventive measure. So, if there are sufficient grounds to believe that the suspect, the accused will flee from the criminal prosecution authorities or the court, or will prevent an objective investigation of the case or its proceeding before a court, or continue to engage in criminal activity, and to ensure the enforcement of the sentence, the criminal prosecution authority within the power have the right to apply to these persons one of the preventive measures provided for in Article 137 of the CPС. To persons suspected of committing crimes under articles 99 (paragraph 15 of part two), 170 (part four), 175, 177, 178, 184, 255 (part four), 263 (part five), 286 (part four), 298 (part four), 299 (part four) of the Criminal Code of the Republic of Kazakhstan, detention as a preventive measure can be used for reasons solely due to the gravity of the crime (parts 1-2 article 136 of the Criminal Procedure Code). Signed undertaking not to leave place of residence and proper conduct consists in removing from the suspect, accused by the body conducting the criminal proceedings, a written obligation not to leave a permanent or temporary place of residence (settlement) without the permission of the interrogating officer, crime investigator or court, not to prevent the investigation of the case and proceeding before a court, to respond promptly when summoned by an authority conducting criminal proceedings. The personal guarantee consists in assuming by the credible persons a written commitment that they are vouching for the proper behavior of the suspect, the accused and their attendance at the call of the authority conducting the criminal proceedings. The number of guarantors cannot be less than two. Observation of the command of the military unit for the suspect, accused, who is military servicemen or liable for military training, is required to take measures stipulated by the An Acad Bras Cienc (2018) 90 (1)

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Charters of the Armed Forces, other military forces and military formations of the Republic of Kazakhstan and capable of ensuring proper behavior of this person and his appearance at the call of the authority conducting the criminal proceedings. The return of a minor to the supervision of parents, guardians, trustees or other trustworthy persons, as well as the administration of an organization that performs the functions of protecting the rights of the child in accordance with the law, consists in making a written commitment by either of these persons ensuring the proper behavior of the minor and his attendance at the call of the authority conducting the criminal proceedings, including limiting his stay outside the home and preventing the exit to other areas without permission of the authority conducting the criminal proceedings. The bail consists in purchasing money by the suspect, accused or another person for the court's deposit to ensure that the suspects, accused are discharged from appearing to the person conducting the pre-trial investigation, the prosecutor or to the court on their summons. As a bail other values, movable and immovable property, on which arrest is imposed, can be adopted. Proving the value of the bail and the absence of encumbrances are assigned to the mortgagor. The bail does not apply to persons suspected of committing particularly serious crimes, as well as in cases provided for by part nine of Article 148 of the Code. A home arrest is the social exclusion of a suspect, accused without being kept in custody, but with the application of restrictions established by the judge on the grounds and in the manner provided for in Article 147 of this Code. Detention as a preventive measure is applied only with the sanction of the judge and only with respect to the suspect, accused, defendant in the commission of a crime for which the law provides a penalty of imprisonment for a period of not less than five years. In exceptional cases, this measure of restraint may be applied to a person, suspect, accused, defendant in the commission of a crime for which the law provides an imprisonment for a term of fewer than five years, if: 1) he does not An Acad Bras Cienc (2018) 90 (1)

have a permanent place of residence on the territory of the Republic Kazakhstan; 2) his identity has not been established; 3) the person has violated the previously chosen measure of restraint or a procedural coercive measure; 4) the person tried to hide or disappeared from the criminal prosecution authorities or the court; 5) the person is suspected of committing a crime as part of an organized group or criminal community (criminal organization); 6) the person has a conviction for a previously committed grave or especially serious crime; 7) there are data on the continuation of criminal activity (Articles 141-147 of the Code of Criminal Procedure). A somewhat different meaning is laid by the legislator in the appointment of other measures of procedural coercion. Thus, in order to ensure investigation, trial in criminal cases, proper execution of the sentence manner prescribed by the Criminal Procedure Code the authority conducting the criminal procedure has the right to apply other measures of restraint, as prescribed by Chapter 18 of the Criminal Procedure Code, or along with it other measures of procedural coercion: the obligation on appearance, bringing to court, temporary suspension, seizure of property, prohibition on approaching. In cases stipulated in the Criminal Procedure Code, the authority conducting the criminal proceedings has the right to apply to the victim, witness and other participants in the case measures of procedural coercion: the obligation of appearance, the bringing to court, the monetary penalty (part 1-2 of article 155 of the Criminal Procedure Code) and etc. It is obvious that the legislator of Kazakhstan, during the construction of Section 4 of the CPC of 1997 and then of the CPC of 2014, took into account the more than 38-year practice of the CPC of the Kazakh SSR from July 22, 1959 and extensive long-standing theoretical studies concerning the institution of procedural coercive measures in the criminal process. From the foregoing, the legislator of Kazakhstan has a rather accurate approach to the definition of a system of procedural coercive measures, the purposes, motives, and grounds

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for their application and their delimitation from other proceedings and investigative actions in the criminal procedure. In the nature of the latter, there is no coercion characteristic of procedural coercive measures; they are a product of the power relations inherent in legal relations, arising, proceeding and stopping in the sphere of criminal justice. Exactly because of this reason the opinions of lawyers are very controversial regarding a broad understanding of the institution of coercion in criminal proceedings, a part of which procedural coercive measures, per se, are. MATERIALS AND METHODS The validity of the conclusions and recommendations is provided through the integrated application of dialectical and privatescientific methods. The normative base of the research was the Constitution of the Republic of Kazakhstan and the Criminal Procedure Code of the Republic of Kazakhstan. The theoretical and practical foundations of the institution of measures of criminal procedural coercion were reflected in the works of Y.D. Lishvits, Z.F. Kovrigi, V.M. Kornukov, F.M. Kudin, Z. Zinatulina, I.L. Petrukhin, I.A. Retyunskikh, B.B. Bulatov, V.V. Nikolyuk and other scientists. Their work has made a great contribution to the solution of significant issues of the designated topic, but many of them were considered, firstly, in the light of the previous legislation and, secondly, remained controversial to this day. A lot of opinions on this issue indicate, firstly, the need for such classification of procedural coercive measures and the search for the most optimal criterion, secondly, the specifics of the criminal procedural regulation of procedural coercive measures in the legislation on the criminal process; thirdly, the possibility of their optimization in the interests of the individual in the criminal process, fourthly, the need to determine the general and specific that characterizes the relevant types of measures of criminal procedure coercion and completeness of these signs in the CPC.

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A stable theoretical base, represented by works of a procedural and common-law nature (monographs, dissertational studies, teaching aids, etc.) has long been formed by this issue. Despite these scientific works were published in different years and the most conceptual ones mainly in the last century, all of them objectively acknowledge the existence of the institution of measures of procedural coercion in the criminal procedure like an effective method for ensuring the normal course of criminal procedure in order to achieve tasks and the objectives of the criminal proceedings. Below, it makes sense to dwell on some of the main points of the authors' work on this subject. RESULTS AND DISCUSSION In the sciences of criminology and criminal procedure, the measures of procedural coercion are classified according to their purposes, what they are trying to achieve (Schroder 1985; Kleinknecht et al. 1995; Gerasimov 1996; Goda 1998; Usmanov 1998), and on the objects in respect of which the measures of procedural coercion will be applied and effected (Butov 1988; Gusakov 1993; West Germany. Criminal Procedure Code 1994). Back in the 70s of the last century, S.N. Bratus correctly noticed that the essential feature of law is its normativity: "... if law is a system of norms, rules prescribing proper or possible behavior to those to whom these rules are addressed, if the norm is the scale of a certain behavior, needless to say, that the essence of law in its normativity" (Bratus 1976). Further, in his words: "Affirming that state coercion is related to the normativity of law, we do not mean that coercion is an arbitrariness, yet organized law-based coercion. If an obligated person does not obey an enactment based on the rule of law, such behavior can only be carried out through coercion. Therefore, normativity implies coercion, without which normativity is eroded, the framework, the boundaries of behavior are erased, nothing remains of the scale of behavior" (Bratus 1976). In the context of the above F.N. Kudin considers as the key signs of state-legal coercion the following: 1) it is always settled by the law, An Acad Bras Cienc (2018) 90 (1)

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which represents the normative framework of this type of coercive impact; 2) the need for coercion arises when the state will and the will of the coerced entity do not coincide, which is objectively expressed in the person committing a normatively fixed offense; 3) state-legal coercion goal is the formation of a person's state of subordination, compel it to perform the actions prescribed by law, or, on the contrary, refrain from illegal actions; 4) state coercion consists of various kinds of personal, property and organizational nature restrictions to which the coerced is subjected; 5) the actual effect of state-legal coercion takes place in the lawenforcement activities of organs of the state, which requires the procedural forms of its statutory implementation (Kudin 1985). In this general legal approach, the tonality of special studies in the field of criminal procedure, dedicated to the institution of procedural coercion, lies. Taking into account characteristics named above, Z.F. Kovriga, the author of one of the first detailed monographs on the problem under study, concludes that criminal procedure coercion is one of the ways to influence the behavior of participants of the process, regulated by the rules of criminal procedure law. And further ... "... criminal procedural coercion is a form of state coercion with its specific goals and is expressed in specific means that criminal procedure legislation has for solving the tasks facing it" (Kovriga 1975). According to Z.F. Kovriga, criminal procedure coercion, being a special form of legal coercion, consists of a variety of measures that constitute an integral system, and is characterized by certain features: it is applied only in criminal proceedings; it is carried out by competent state bodies or their representatives; acts in the form of legal relations; has the character of personal, property and organizational limitation of subjective rights; is expressed in the external moral, mental and physical impact on the subjects, their activities or property; person, to whom criminal procedural coercion is applied, the grounds, conditions, forms, limits, and procedure for its application are precisely regulated by the criminal procedure legislation; a specific An Acad Bras Cienc (2018) 90 (1)

purposefulness is intrinsic to it; the legality and validity of the application of criminal procedural coercion are ensured by the system of procedural guarantees of individual rights and by the prosecutor's supervision (Kovriga 1975; Elkind 1967). The above characteristics, according to the position of Z.F. Kovriga, constitute the content of criminal procedure coercion and its essence (Kovriga 1975). In general, according to Z.F. Kovriga, criminal procedural coercion should be understood like a method of state influence, manifested in criminal procedural means of suppressing wrongful acts (inaction), representing a threat to the interests of justice and ensuring the conditions for the successful implementation of the tasks of justice, applied in accordance with the procedure established by law, by the competent bodies of the state (public officials) in respect of participants in criminal procedure activities (Kovriga 1975). And further, this author reveals the content of criminal procedural coercion, its essence and concludes that the absence of a scientifically grounded criterion that allows more clearly define the functions of procedural coercion leads to the fact that in the legal literature under the measures of criminal procedural coercion are understood the most diverse investigative and judicial actions (Kovriga 1975). However, Z.F. Kovriga partially agrees with the opinion about the division of all methods of criminal procedural norms enforcement for procedural responsibility, protection measures (procedural penalties) and measures of procedural coercion, first put forward by A.A. Filyushchenko and developed by many other proceduralists in this or that format (Filyushchenko 1974). Thus, V.M. Kornukov later reproduced and detailed these types of procedural coercion on (Kornukov 1978): 1) criminal procedural responsibility (imposition of a monetary penalty, turning of a bail in the income of the state) as a result of a direct violation or if criminal procedural norms are unenforced; 2) measures of upholding and restoring rule of law (the canceling of unlawful and unjustified

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decisions), caused by improper performance of the legal rule's requirements; 3) measures of procedural coercion as a means of preventing certain actions (preventive measures used to avoid the accused from evading the investigation and the court) and creating the necessary conditions for finding and obtaining evidence (search, seizure, examination, placing the accused in a medical institution, etc.). I.L. Petruhin actually repeated the structure of the criminal procedural coercion (taking into account the actual scope of each type of criminal procedural coercion) in the form of measures of upholding rule of law, preventive measures and procedural responsibility (Petrukhin I.L. 1985). To the measures of the upholding rule of law he attributed: the enforcement of implementation proceeding participant's duty in a criminal procedural relation (the conduct of an investigative action contrary to the will and desires of the subject); compulsory exercise of the subjective right of the participant of the process; the cancellation of unlawful and unjustified procedural acts; private (special) court orders (decrees); the removal of the interrogator, the investigator, the prosecutor from further conduct of the case; challenge of the challenged participant of proceeding despite one's will. As preventive measures, I.L. Petrukhin analyzes measures of restraint, detention of a suspect, seizure of property, removal of the accused from office (Petrukhin I.L. 1985). Actually, the criminal procedural liability is interpreted by the author as the implementation of sanctions of the punitive nature of different branches of law, in the case of committing a procedural offense by a person, for the purpose of punishing one and protecting the procedural legal order, which entails negative consequences for the perpetrator. By the way, the proposal of A.A. Filyushchenko, if it is projected on the measures of procedural coercion established by the Criminal Procedure Code of Kazakhstan, rather clearly defines the criteria for an internal classification of the types of measures of procedural coercive provided for in section 4 of

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the Criminal Procedure Code of the Republic of Kazakhstan. V.N. Kornukov, also one of the major investigators of the problem of coercive procedural measures in criminal proceedings, regards criminal procedure coercion as a form of state coercion, which is a set of all measures of compulsory influence envisaged by the norms of the criminal procedural law designed to ensure the fulfillment of duties by the investigation participants during the investigation and judicial review of criminal cases and the proper implementation of objectives of legal proceeding (Kornukov 1978). According to V.N. Kornukov, the criminal procedure coercion is much broader and heterogeneous (and here, in fact, it is in solidarity with A.A. Filyushchenko and Z.F. Kovriga). In some cases, he writes, it is the result of direct violation of or unenforced criminal procedural norms and acts as a liability, while in others it is connected with improper performance of legal norms, but acts in the form of measures of upholding and restoring rule of law, and in the rest it is used as a means of preventing certain actions and creating the necessary conditions for finding and obtaining evidence. In turn, O.P. Kopylova considers criminal procedure coercion as one of the ways to influence the behavior of participants in the process, regulated by the rules of criminal procedure, which provides for the possibility of applying state coercion to persons, who disregards the requirements of the law, or to prevent such failure. Moreover, it can act in different forms and vary in nature (Kopylova 2011). It also reproduces four rules that are directly related to the definition of the limits of criminal procedural coercion from the point of view of the constitutional legality regime previously proposed by R.K. Iakupov. The first rule is the inadmissibility of restrictions on individual rights and freedoms, which are not caused by the circumstances of the criminal case and legitimate need. The second rule is the inadmissibility of underestimating the interests of other persons protected by law and the consequent failure to An Acad Bras Cienc (2018) 90 (1)

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take due measures of criminal procedural coercion by limiting the relevant rights and freedoms of the suspect or the accused. The third rule is the balance of legally protected interests of the individual, society and the state when applying measures of criminal procedural coercion. Finally, the fourth rule - restriction of constitutional and other personal rights and freedoms is allowed only by the procedural law, that is, the Criminal Procedure Code of the Russian Federation (Iakupov 1986; Kopylova 2011). In the same vein the nature of procedural coercion and as its subspecies – measures of procedural coercion are interpreted by other authors of the later period of the development of the theory of criminal procedural coercion in criminal proceedings. For example, M.G. Gaidysheva, before starting the investigation of the institution of means of criminal procedural coercive measures, grounds, conditions and order of their application, from a clear and consistent understanding of which directly depends on the performance of the appointment of criminal proceedings, also analyzes in detail the nature of such key concepts as "coercion", "state-legal coercion","criminal procedural coercion" and "measures of procedural coercion". Moreover, and in this the value of the work, she as thoroughly as Z.F. Kovriga analyzes the definitions of various authors regarding the inequality in the scope of the categories "criminal procedural coercion" and "measures of procedural coercion" and at the same time their great similarity and interconnection. The structure of criminal procedural coercion was subjected to the separate analysis (presumably, according to A.A. Filyushchenko), as supported and developed by many proceduralists (Z.F. Kovriga, V.M. Kornukov, I.L. Petrukhin), namely, that the scope of criminal procedural coercion forms protection measures, criminal procedural liability, and preventive measures. The conclusion is that the measures of procedural coercion and other procedural actions containing elements of coercion are separate parts of criminal procedural coercion. An Acad Bras Cienc (2018) 90 (1)

According to V.N. Kornukov, measures of procedural coercion can be defined as procedural means of coercive nature provided by the criminal procedural law, applied in the strictly in accordance with the procedure prescribed by law by the body of inquiry, the investigator, the prosecutor and the court in relation to the accused, suspect, victim, witness, other persons to eliminate the actual and possible obstacles arising in the investigation process and the resolving of criminal cases in order to ensure the successful implementation of criminal proceedings (Kornukov 1978). In the works of the authors who studied the measures of criminal procedural coercion, a significant place is given to the problem of classifying these measures. It is necessary to note the lack of a common opinion on the classification of measures of criminal procedure coercion (Tarasov n.d.). Thus, Y.D. Livshits, one of the first authors who studied the problem of measures of criminal procedure coercion, divides them into preventive measures; measures to detect and seize evidence; measures ensuring order in the court session; other (Livshits 1958). N.V. Zhogin and F.N. Fatkullin grouped the measures of procedural coercion into two groups: preventive measures, other measures of procedural coercion (Zhogin 1965). Z.F. Kovriga, based on the designation of procedural coercion, its specifics and the relations arising at the same time, divides all measures of criminal procedural coercion into two main groups: means of restraint and means of support. The author sees the appointment of means of restraint in order to restore normal legal ties and relations by forcing the subject to perform previously assigned, but not discharged, duties (preventive measures, removal of the obligation of appearance, detention, bringing to court, search and removal, removal of the accused from office, measures taken to violators of the order of the court session). The author refers to the group of means of support the search, seizure, placement of a suspect or accused in a medical institution for the production of a forensic or forensic psychiatric examination (Kovriga 1975).

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V.N. Kornukov believes that the measures of procedural coercion are specific means that are not only aimed at ensuring the normal development of the criminal proceedings and the accomplishment of the tasks assigned to it, but also act in accordance with the nature of the coercion expressed in them, and refers to them: preventive measures, obligations on appearance, detention, bringing to court, removal from office, search, seizure, examination, obtaining samples for comparative study, placement in a medical institution for examination, seizure of property. All other actions classified as measures of procedural coercion in the scope of criminal procedure, this author considers unjustified neither theoretically nor in practice (Kornukov 1978). Z.Z. Zinatullin sees this classification as follows: preventive measures; detention; removal of the accused from office; seizure of property; search; seizure; examination; obtaining samples for comparative study; placing a person in a medical institution; bringing to court (Zinatullin 1981). In the classification of I.L. Petrukhin singled out five groups. The first group consists of measures of criminal procedural coercion aimed at preventing and suppressing the criminal activity of the accused (suspects); the second - measures ensuring the process of collecting, verifying and evaluating evidence, establishing the truth in a criminal case; the third - measures ensuring the process of investigation, trial and participation of the accused; the fourth measures to ensure enforcement of the sentence; the fifth - measures aimed at ensuring compensation for material damage caused by the crime and possible confiscation of property; etc. (Petrukhin I.L. 1985). CONCLUSION Measures of procedural coercion are applied by the interrogator, the investigator, the head of the investigation team and the head of the investigation department, the prosecutor or the court in order to solve the tasks of justice and should be implemented only in the procedural form prescribed by law.

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Measures of procedural coercion are applied during the period of criminal proceedings and are of a procedural nature; shall be applied by the competent authorities of the state within their authority; apply to persons participating in the case, the improper conduct of which or the possibility of such conduct creates or may create an obstacle to the successful course of criminal proceedings; have specific objectives arising from the general purpose of criminal proceedings; apply in the presence of statutory grounds, conditions and in an order that guarantees their legitimacy and validity; have a special content and character. The essence of the state coercion is a forming of state subordination using restrictions of different nature by authorized state bodies and its officials. Measures of procedural coercion are applied only in criminal proceedings, which is the strongest weapon against crime. Precise regulation by Criminal Procedure Code allows to avoid arbitrary and provide only law-based coercion. Although criminal coercion consists in restriction of absolute and inalienable rights and freedoms, guaranteed by the Constitution of the Republic of Kazakhstan, it allows to protect society from branch of constitutional order and violation of human rights. Being an embodiment of state power, procedural coercive measures guarantee normativity of behavior and the rule of law. The need for coercion appears when state will do not coincide with the will of a citizen, what can be fixed in a form of normatively fixed offence. However, the imposition of criminal procedural responsibility is not the single goal of procedural coercion. Procedural coercion includes methods of restoring rule of law, preventing unlawful actions and creating of conditions needed for successful investigation of a criminal case. Although revision of all mentioned classifications shows an absence of generally applied criterion for classification of measures of procedural coercion, some authors mention preventive measures or its counterparts. Other classifications contain the list of measures of procedural coercion, which is determined by author’s definition of procedural coercive An Acad Bras Cienc (2018) 90 (1)

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measures. Thus, coercive measures can be divided on at least two categories, what is not sufficient and requires further investigation as like as procedural coercive measures definition. It can be stated (judging by the abundance of works) that the theory of criminal procedural coercion and measures of procedural coercion has developed and is actively developing in the criminal proceeding, taking into account democratic trends in the area of criminal justice. The search for a criterion for their classification, a verified procedural form of their production was and remains an urgent task of the science of the criminal proceedings. Taking into account the legislative construction of the institute of coercive measures system, the measures of procedural coercion in criminal proceedings of Kazakhstan should be considered as a set of procedural decisions and actions of state bodies and officials conducting criminal proceedings in accordance with the criminal procedural law, observing the principles and general conditions of the criminal procedure in the corresponding procedural form established by the norms of the Criminal Procedure Code for the effective resolution of the tasks of criminal procedure and achieving its goals. The approach of the legislator of Kazakhstan to the legal regulation of the system of the institution of coercive measures in the Criminal Procedure Code of the Republic of Kazakhstan is clearly defined, which meets the interests and requirements of the practice of combating crime, is scientifically substantiated and needs no revision. Coercive measures in criminal proceedings are the only and most vivid expression of criminal procedure coercion in a criminal proceeding due to the nature, purposes, grounds, and motives of their application in criminal proceedings. All other procedural and investigative actions cannot be regarded as coercive measures since they are aimed at proving the circumstances of the committed criminal offense and are reinforced under certain circumstances by the potential of procedural coercive measures.

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REFERENCES BRATUS S. 1976. Legal responsibility and legality (Discourse on the theory). Moscow: Yuridicheskaya literatura. CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN. ARTICLE 12. N.D. Retrieved June 9, 2017, from http://adilet.zan.kz/rus/docs/K950001000_ ELKIND P. 1967. Interpretation and application of norms of the criminal procedure law. Moscow. FILYUSHCHENKO A. 1974. On criminal procedure coercion. Pravovedenie, No. 3, pp. 108-109. IAKUPOV R.K. 1986. Criminal procedure. Moscow. KOPYLOVA O.P. 2011. Measures of coercion in criminal proceedings: Textbook. Tambov: Tambov State Technical University Publishing House. KORNUKOV V. 1978. Procedural coercion measures in criminal proceedings. Saratov: Saratov University Publishing House. KOVRIGA Z.F. 1975. Criminal procedural coercion. Voronezh: Voronezh State University Publishing House. KUDIN F. 1985. Coercion in criminal proceedings. Krasnoyarsk. LIVSHITS Y. 1958. Measures of criminal procedure coercion in the Soviet criminal proceedings (Abstract of Candidate of Juridical Sciences Dissertation). Moscow. PETRUKHIN I. 1985. Personal liberty and criminal procedure coercion. General concept. Inviolability of the person. Moscow. PETRUKHIN I.L. 1985. Freedom of the person and criminal procedure coercion. Moscow: Science. TARASOV A. N.D. Coercion and liability in criminal proceedings (Candidate of Juridical Sciences Dissertation). TSOKOLOVA O.I. 2008. Measures of criminal procedural coercion, consisting in isolation of the suspect, the accused. Moscow: All-Russian Research Institute of the Ministry of Internal Affairs of Russia. ZHOGIN N.F. 1965. Preliminary investigation in the Soviet criminal procedure. Moscow. ZINATULLIN Z. Z. 1981. Criminal procedural coercion and its effectivity. Kazan. ESER A. 1996. Entwicklung des Strafverfahrensrechts in Europa. Zeitschrift fur die gesamte Strafrechtswissenschaft 108, No. 1, pp. 101-102. HOFMANSKI P. (ED.). 1999. Kodeks postępowania karnego. Komentarz. Volume 1. Warszawa, pp. 871-1075. ORLANDI R. 1996. Rechtsstaatliche Strafverfolgung und organisierte Kriminalitat: Die italienische Strafjustiz im Umbruch.Ueitschrift fur die gesamte Strafrechtswissenschaft 108, No. 2, p. 432. VILLIGER M.E. 1993. Handbuch der Europaischen Menschenrechtskonvention (EMRK). Zurich. DUTTGE G. 1995. Der Begriff der Zwangsmassnahme im Strafprozessrecht. Baden-Baden. KUHNE Н.Н. 1978. Strafrozesslehre. Eine Einfuhrung.

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SCHRODER F.C. 1985. Einefunktionale Analyse des strafprozessualen Zwangsmittel. Juristenzeitung. pp. 1028-1030. KLEINKNECHT T., MEYER-GOSSNER L. 1995. Strafprozessordnung. 42 Auflage. Munchen. GERASIMOV V.N. 1996. Criminalistics. Moscow. GODA G. 1998. The concept of procedural coercion measures, Pravo No. 32, p. 60. USMANOV U.A. 1998. Reference book of the investigator. Moscow. BUTOV V.N. 1988. The Criminal Process of Austria. Krasnoyarsk. GUSAKOV A.N. 1993. Forensics USA: Theory and practice of its application. Ekaterinburg. WEST GERMANY. CRIMINAL PROCEDURE CODE. 1994. Moscow.

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