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3. Mankheim K. The diagnosis of our time/translation from English S. V. Karpushina. - M.: Lawyer, - 1994. - 446 p.
4. The law of the Kazakh Soviet Socialist Republic from - June 28, - 1991. - Access mode: URL: http://egov.kz
5. The law from - July 7, - 2004 "About the state youth policy in the Republic of Kazakhstan" (with changes and additions from 13.01.2014) (became invalid). - Access mode: URL: http://online.zakon.kz
6. The concept of the state youth policy in the Republic of Kazakhstan till 2020 "Kazakhstan 2020: way to the future"/URL:/http://strat-egy2050.kz
7. The law of the Republic of Kazakhstan from February 9, 2015 "About the state youth policy"//URL: http://online.zakon.kz
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-270-272
Ibrayeva Alua Salamatovna, Doctor of Law Professor, Al-Farabi Kazakh National University E-mail: [email protected] Tursynkulova Dinara Ahanovna, Candidate of Legal Sciences Professor, Al-Farabi Kazakh National University E-mail: [email protected] Nussipova Lyatifa, Senior Lecturer, Al-Farabi Kazakh National University E-mail: [email protected] Goncharov Sergey Borisovich, Al-Farabi Kazakh National University, E-mail: [email protected] Ushurbakiev Ashimzhan Abdullaevich, Municipal public institution «School number 75 to them. Sh.Kudayberdyuly»
Legal basis of anti-corruption in the Republic of Kazakhstan
Abstract: In this article the legal mechanism of anti-corruption in the Republic of Kazakhstan is revealed. Here the analysis of legal status of subjects of anti-corruption is carried out; contents of the legal basis of anti-corruption in RK are disclosed. Keywords: corruption, anti-corruption legislation, anti-corruption, subjects of anti-corruption.
From the moment of independence Kazakhstan purposefully and step by step follows a rate on creation of effective, conforming to the international standards institutes and mechanisms on anti-corruption. Corruption as the social phenomenon is a serious problem for any society today. Corruption arises together with the state and closely connected with the government, with a possibility of access to financial resources of the state, with an opportunity to apply forced methods and means to achieve personal purposes.
Corruption is characteristic of most states of the world as developed and developing states too. High level of corruption leads to decrease efficiency of public administration, reduces level of social and economic development and investment appeal of the country. According to the information that was given by the Institute ofeconomy of Committee of Science of the Ministry of Education of the Republic of Kazakhstan, damages caused to Kazakhstan because of corruption crimes since 1994 to 2013 are assessed at more than $7,5 billion. According to data ofthe Prosecutor General's Office of RK from 2006 to 2016 100 billion tenges are exported from Kazakhstan.
On November 18, 2015 the law of RK "About Anti-corruption" [1] was adopted. According to this law, corruption is illegal use by the persons holding a responsible state position, the persons authorized on accomplishment of the state functions, the
persons equated to the persons authorized on accomplishment of the state functions, official persons of their (office) full powers and the related opportunities for the purpose of obtaining or extraction personally or through intermediaries of the property (non-property) benefits and dividends to themselves or third parties, and equally in bribery of these persons by provision of the benefits and dividends.
For anti-corruption the anti-corruption policy is pursued. It is the legal, administrative and organizational measures directed to decrease corruption risks, increase in trust of society to activities of state bodies. In addition, we will open a concept of anti-corruption. Here activities of subjects of anti-corruption within the powers according to the prevention of corruption are meant. Here it is possible to refer actions for forming of anti-corruption culture in society, identification and elimination of the reasons and conditions that promote making of corruption offenses and identification, suppression, disclosure and investigation of corruption offenses and elimination of their consequences [1].
In the presidential decree approved on December 26, 2014 the Anti-corruption strategy of the Republic of Kazakhstan for 20152025 the key directions of anti-corruption were determined. This anti-corruption actions in the sphere of public service; implementation of institute of public control; anti-corruption in a quasi-public
Legal basis of anti-corruption in the Republic of Kazakhstan
and private sectors; the prevention of corruption in judicial and law enforcement agencies; forming of level of anti-corruption culture; development of international cooperation in the sphere of anticorruption [2].
The anti-corruption mechanism is enshrined in the legislation of RK. Here it is possible to carry the following elements.
1. Anti-corruption monitoring — activities of subjects of anticorruption for collection, handling, generalization, the analysis and assessment ofinformation concerning efficiency of anti-corruption policy, condition of law-enforcement practice in the sphere of anticorruption, and also perception and assessment of level of corruption by society;
2. The analysis of corruption risks — identification and studying of the reasons and conditions that promote making corruption offenses;
3. Forming of anti-corruption culture — activities performed by subjects of anti-corruption within the competence on preserving and strengthening in the society of the value system reflecting intolerance to corruption;
4. Identification of corrupt genic regulations in case ofproduc-tion of legal examination according to the legislation of the Republic of Kazakhstan;
5. Forming and observance of anti-corruption standards. Anticorruption standards — the system of recommendations directed to the prevention of corruption installed for the isolated sphere of the public relations;
6. Financial control (declaration on assets and liabilities; declaration on the income and property);
7. Anti-corruption restrictions. The restrictions connected with implementation of the activities not compatible to accomplishment of the state functions concern to them. It is inadmissibility of joint service (work) of close relatives, spouses and cousins-in-laws. A prohibition on use of the office and other information which is not subject to official distribution for the purpose of obtaining or extraction of the property and non-property benefits and dividends. Also, acceptance of gifts in connection with execution of office powers according to the legislation of the Republic of Kazakhstan;
8. Prevention and conflict resolution of interests;
9. Anti-corruption measures in the sphere of entrepreneur-ship. Here the following measures belong. It is — establishments of the organization-legal mechanisms that provide accountability, submission to control and transparency of procedures of decision making; respect of the principles of a fair competition; prevention of conflict of interest; acceptance and observance of regulations of business ethics; taking measures to forming of anti-corruption culture; interactions with state bodies and other organizations for the prevention of corruption;
10. Identification, suppression, disclosure and investigation of corruption offenses; message about corruption offenses;
12. Elimination of consequences of corruption offenses;
13. Forming and publication of the National report of anti-corruption. The national report of anti-corruption — the document containing the analysis and assessment of a condition and tendency of distribution of corruption at the international and national levels, offers on forming, implementation and enhancement of anticorruption policy [1].
Implementation of these mechanisms in compliance with the Law is assigned to subjects of anti-corruption within their powers. Such subjects are:
1) authorized body on anti-corruption.
2) other subjects of anti-corruption — state bodies, subjects
of quasi-public sector, public associations and also other physical persons and legal entities [1].
In the Republic of Kazakhstan authorized body on anti-corruption is the National bureau of anti-corruption of Agency of the RK for public service and to anti-corruption [3]. Also all state bodies including subjects of quasi-public sector are subjects. Subjects of quasi-public sector it is the state entities, limited liability partnerships, joint-stock companies, including national managing holdings, national holdings, the national companies, the founder, participant or the shareholder of which is the state, and also the affiliated, dependent and other legal entities who are affiliated with them according to legal acts of the Republic of Kazakhstan [4] and also all commercial and non-commercial legal entities and physical persons (citizens, stateless persons, oralmans, foreigners) of the Republic of Kazakhstan.
The operational investigative divisions of authorized body on anti-corruption that perform activities directed to the prevention, identification, suppression, disclosure and investigation of corruption crimes [1] are referred to anti-corruption service. The staff of these divisions in case of execution of service duties by them has powers established by the Law of the Republic of Kazakhstan "About law-enforcement service" [5].
According to Transparency International Kazakhstan takes the 123rd place in the Index of perception of corruption (The Corruption Perceptions Index). It specifies a high rate ofprevalence of corruption in a public sector [6]. Let us give an example. So, in the first half of the year 2016 1 644 facts of corruption offenses are elicited. Criminal cases on 1 038 of the specified facts are directed to courts.
Structure of the registered crimes following:
- assignment of confidential someone else's property - 238;
- fraud - 63;
- pseudo-entrepreneurship - 8;
- making of the actions connected with creation of invoices for
outstanding works and undelivered goods - 2;
- legitimation of money and other property received in the criminal way - 4;
- economic smuggling - 1;
- abuse of ex-officio full powers - 14;
- illegal participation in business activity - 4;
- preventing of legal business activity-5;
- taking of a bribe - 377;
- bribery - 114;
- mediation in bribery - 15;
- office forgery - 323;
- failure to act on service - 4;
- authority misuse - 10.
On complete criminal cases on corruption crimes the amount damage, put to the state, constituted 9,5 billion tenges [7].
Of course, all these negative indicators reduce level of credibility of citizens to the state. With respect thereto new mechanisms of counteraction and fight against corruption are developed and take root. It is possible to carry the following to new mechanisms of fight against corruption.
1. Carrying out the next and extraordinary certifications for separate categories of employees. At the same time not only knowledge of the legislation, but also both personal and professional competence of officials are estimated;
2. Step-by-step pay rise by the government to employees;
3. Implementation of system of estimation of achievements of the government employee and his awarding on the basis of these indicators;
4. Enhancement of an electronic clerical work, control and 5. Implementation of the Electronic government of the Repub-
monitoring of activities of government employees; lic of Kazakhstan — egov.kz.
References:
1. The law of the Republic of Kazakhstan of - November 18, 2015 "About anti-corruption" URL://http://online.zakon.kz
2. The presidential decree of December 26, 2014 "About approval ofAnti-corruption strategy of the Republic of Kazakhstan for - 20152025 " URL://http://anticorruption-zko.gov.kz
3. The presidential decree of October 5, - 2016 "About some questions of the Agency of the Republic of Kazakhstan for public service and to anti-corruption and modification and additions in some acts of the President of Kazakhstan" URL://http://online.zakon.kz
4. The budget code of the Republic of Kazakhstan of - December 4, - 2008 URL://http://online.zakon.kz
5. The law of the Republic of Kazakhstan of - January 6, - 2011 "About law-enforcement service" URL://http://online.zakon.kz/
6. Table of results: corruption perceptions index - 2015 URL://http://www.transparency.org/cpi2015
7. In Kazakhstan in the first half of the year - 2016 1 644 facts of corruption offenses URL://http://forbes.kz/news/2016/08/23/new-sid_119 016 are elicited
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-272-274
Isaeva Klara Asangazyevna, Doctor of Law, Professor Kyrgyz National University named after Jusup Balasagyn E-mail: [email protected]
Problems of realization of the principle of competitiveness and equality of rights in separate countries of the CIS at modern stage
Abstract: based on the analysis of different points of view considering the experience of separate CIS countries, the article reveals the problems of realization of the principle of competitiveness and equality of rights of the parties at modern stage. Keywords: principles of competitiveness, national legislation, criminal process, attorney, attorney investigation.
As it is correctly indicated, «... the provisions about the rights and freedoms of a person are defined by the Constitution of any democratic state. Hence, the rights and freedoms of the man are considered the supreme value of the society and the state in the Constitutions of Kyrgyzstan (article 16), Russia (article 16) etc. No one argues that this institution is one of the fundamental bases of the specified states. Modern standards in the sphere of rights and freedoms of the person reflected not only in the norms of international law but also in the national legislation ensure the protection from unlawful external interference and promote the strengthening of the status of the individual themselves. It should be noted that in the course of a long confrontation between the person and the authority, there is a search for an optimal model of their interrelation; the volume of rights and freedoms of the citizens of the states was changing under the effect of that fact. And this most difficult perpetual problem remains unsolved till date due to various reasons of both objective and subjective nature » [1, P. 338-339].
Thus, on the assumption of today's realities, we deem correct that the critical rethinking requires the principle stated in the Constitution of CIS states that «Legal proceedings are performed on the basis of competitiveness and equality of rights of the parties», which is a guarantee of the protection of rights and freedoms of the citizens' interests. This provision became a new stage in the development of the criminal process.
Currently, the analysis of different sources shows that the opinion of scientists is divided both in the understanding of the very mechanism of realization of the principle of competitiveness and in the issue of its circulation at the stage of the criminal process.
T. T. Shamurzaev emphasizes correctly: «... the development of competitive beginnings in the criminal legal proceedings in the Kyrgyz Republic is related to a range of problems. These problems
are determined by inappropriate legal regulation of the principle of performance of legal proceedings based on the competitiveness and equality of rights of the parties as result of wrong understanding of the essence of this principle by the legislator. The consequence of it is the respective wrong realization of criminal procedure norms in the practice of law application, which implies the breach of rights and legal interests of the participants of the criminal process» [2, P. 44].
For instance, speaking about the drawbacks of the activity of investigative authorities during the procedure of criminal cases in the sphere of finances and credits, it is underlined that «... often, investigative authorities make baseless decisions on an investigated case due to the following circumstances: a) the limitation of the period of decisionmaking about the institution of criminal proceeding at the stage of pre-investigation check, where the examination of available materials and its evaluation are carried out; b) difficulties are also related to the wrong evaluation of the action of the participants of a criminal event by the investigator at the stage of the institution of a criminal proceeding; c) low knowledge of the investigators in the sphere of finance and credit relations and weakening of professional nucleus (including the conduct ofnumerous «sponsored» reforms); d) uneven distribution ofload on investigators, which leads to the procrastination of the investigation period as well as groundless termination or suspension of the legal proceeding [3, P. 34]. Nevertheless, such situation is typical for the other category of cases investigated by the investigative authorities, which cannot not affect the realization of the considered principle as result of which the rights of the citizens are breached.
The analysis of the provisions of criminal procedure legislation of the CIS countries shows that in these countries, the criminal proceeding process is mainly mixed, i. e. at the stage of pre-trial proceedings, it has investigative character with the elements of competitive-
