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Some legal, theoretical, social and economic preconditions of developments of the current legislation of the Republic of Kazakhstan
Akimzhanov Talgat Kurmanovich, Humanitarian University Of transport and law n. a. D. A. Kunayev, Vice-rector for academic affairs, Doctor of law sciences, professor, Honored employee of the RK MIA, Justice colonel (ret.), Almaty, Republic of Kazakhstan E-mail: [email protected] Seralieva Aliya Mazhitovna, Candidate of Legal Sciences, docent, KazNPU named after Abai, Almaty, Republic of Kazakhstan E-mail: [email protected]
Some legal, theoretical, social and economic preconditions of developments of the current legislation of the Republic of Kazakhstan
Abstract: The article explored the issues of formation and improvement of penal policy in the Republic of Kazakhstan. The authors have paid special attention to the analysis of the criminal laws of the state. The authors believe that the most important element of legal policy of the state should be criminal policy, the improvement of which should be carried out by an integrated, interrelated correction of criminal law, criminal procedure law and criminal-executive law, as well as law enforcement.
Keywords: Criminal policy; criminal law; humanization; criminal law legislation; Criminal Code of the Republic of Kazakhstan; criminal liability; punishment; law enforcement system; crime.
The current state of the fight against crime, the imperative of our time, as well as international trends in the development of the legal system, point at the need for the humanization of the law in force, on the other hand to strengthen criminal liability for certain types of crime. In this regard, the importance for the modernization of modern criminal law was the development and adoption of the new draft of the Criminal Code of the Republic of Kazakhstan (May, 2014) [1, 53-54].
As approved by the Presidential Decree ofAugust 24, 2009 № 858 “Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020”, it was noted that the most important element of the legal policy of the state is criminal policy, the improvement of which is carried out by an integrated, interrelated correction of criminal law, criminal procedure law and criminal-executive law, as well as law enforcement [2].
It is no coincidence, in the development of this provision in the President of the Republic of Kazakhstan — Leader of the Nation Nursultan Nazarbaev to the people of Kazakhstan “Strategy “Kazakhstan — 2050”: new political course of the held state” it was entrusted to the Government together with the administration to start the reform of the Criminal and Criminal procedural legislation in 2013.
Emphasis should be placed on further humanization, including decriminalization of economic crimes. It is necessary to prepare and submit a draft 4 of the Code to Parliament: Criminal Procedure, Criminal, and Criminal Executive Code and the Code of Administrative Offences. The adoption of these key legislative acts conceptually modernize the criminal procedure system and bring our right to a standard that allows you to adequately respond to current challenges [3].
The adoption of new criminal and criminal-executive legislation of the Republic of Kazakhstan, which entered into force on January 1, 2015 significantly affect the law enforcement practice, however, a number of problems, which we mentioned earlier were not reflected and require further study.
Adverse changes of quantitative and qualitative characteristics of modern crime, costs of law enforcement activity, aggressiveness and determination of government policy in the fight against crime, require new approaches to the understanding of law and law enforcement, to understanding and rethinking the existing criminal legislation of the Republic of Kazakhstan.
Availability of crime tensions in society caused by the crime indicates a problem of criminal law of methodological order, which together determine the low efficiency of criminal legal regulation of social relations.
Solution of the problem involves a set of interrelated problems of social and legal order, imperfection of the norms of criminal law, the problems of qualification of crimes, the combination of lawful and reasonable fairness in the selection and assignment of punishment.
In general, there is the lack of foundation of criminal responsibility, and therefore, there is a fair conclusion about unexplored of the legal nature of the crimes in full.
In this context, the relevance of the offense to the position of a definition of public danger of crimes is not in doubt, such as it is directly related to the modern comprehension of the doctrine of crime components, designing of structures in a single act of law enforcement, general and special issues of improvement of legal regulation.
It should be noted that the theory of criminal legal thinking in public and state life has been given lack of attention,
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despite the fact that it directly determines the principle of construction, maintenance and system of criminal legal policy in conjunction with the political regime, the balance of political forces, as well as with the state, dynamics and the structure of crime.
Doctrinal innovations of consideration of new approaches to crime prevention at the present stage consists in the that the traditional subject of criminal law and criminal law regulation reasonably expands due to the achievements of modern philosophy, sociology, criminal anthropology.
It should be noted that uniform policy in the area of legal consciousness has not been formed in the law enforcement environment up to the present moment, and there are many problems in the investigative and judicial practice in the application of the criminal law.
It should be offered the idea in the modern concept of law allowing to increase the efficiency and quality of law enforcement agencies activity in combating crime issues in Kazakhstan. However, the imperfection of the current criminal legislation and law enforcement practice does not allow to use the whole potential of the fight against crime in full.
In addition, uniform judicial practice in criminal legislation enforcement and its application has not yet fully formed in Kazakhstan. These circumstances necessitate deeper theoretical understanding of the problem, from a position of the object of the crime.
Problems in the theoretical aspects of criminal legal rethinking of law enforcement activity are closely related with the content of the criminal law.
Here are some examples.
For example, today it has developed that many of the provisions of the current Criminal Code of the Republic of Kazakhstan has long been outdated and in need of radical revision. However, if you compare the contents of the new Criminal Code with the current Criminal Code of the Republic of Kazakhstan, the most of the articles of both general and the special part gradually moved to the new edition of the Criminal Code of the Republic of Kazakhstan.
Available erratical correlation of types of punishments in the Criminal Code under which the most basic kind of punishment provided in sanctions by the articles of the Criminal Code, has not changed in the new draft of the Criminal Code, but also unnecessarily adjusted in favor of the prevalence of this form of punishment as imprisonment.
In second place is a fine — 341. Third place is such type of punishment as restriction of freedom — 332. Than it follows deprivation of right to hold specific posts and profess some activity (223), corrective work — 166, community service — 76, the custody in the guardhouse — 43, limitation in military service — 16, life imprisonment — 19 the death penalty — 16.
In the Criminal Code, which has been successfully ordered last discussion in the Parliament of the country dominated such kind of punishment as imprisonment — 744, than follows a fine — 471, than it is corrective work — 468. Limitation in
service — 342, confiscation of property — 264, community service — 152, seizure — 150, the death penalty — 12 [4].
That is a fair conclusion suggests that the installation of the head of state in terms of the humanization of the current legislation announced in Address to the Nation of Kazakhstan on January 29, 2010 by the President of the Republic of Kazakhstan N. A. Nazarbayev are not implemented in full.
So, the President specified that the fines represent less than 5 %, corrective work — 0.4 %, community service — 0 % in our system of punishment. But the main form of punishment is imprisonment. Nobody deals with the rehabilitation of people released from prison. As a result, they add to the number of offenders [5].
If we look at the history of sovereign Kazakhstan, the development of the Criminal Code accrue to the second half of the nineties. It was a very difficult time. The collapse of the Soviet Union, the declaration of sovereignty, the collapse of the socialist way of production and the transition to a market economy, rampant crime and chaos in the economy. Therefore, the Criminal Code of the Republic of Kazakhstan adopted on July16, 1997 and entered into force on January 1, 1998, was a transitional document and its mission to stabilize the difficult situation in the country has successfully completed [6, 45].
In developing the new Criminal Code it is necessary to proceed from the fact that the criminal law should be tough, even cruel in relation of ardent criminals, repeatedly convicted of crimes, committed the crimes intentionally and their presence in society is an increased danger to others. They should, of course, be isolated from society.
At the same time, the criminal law should exhibit the humanity with relation to people who are the first-time offenders, especially when it comes to crimes committed by negligence.
As you know, the legal regulation in the field of law enforcement has social consequences.
Firstly, there is a constant process of intensive increase of “prison” population.
On average, since 2004 such kind of punishment as imprisonment invokes by the courts annually in Kazakhstan against 17-18.5 thousands of people who are in correctional institutions [7].
Thus, according to Deputy Secretary of the Security Council of the Republic of Kazakhstan K. Zhanburshina 1.2 million people condemned since independence. If we consider that each family on average has four people, it turns out that about 5 million Kazakhs were involved in the criminal environment. The man who served time in prison comes back as a broken and afflicted person, not a reformed person [8].
According to the Committee of the correctional system of MIA RK more than half a million people have passed through the correctional system since independence of our country as ofJanuary 1, 2014 [9].
Secondly, when we place the criminal in an institution, first of all, it means the physical isolation of the convict from his usual society (it is subject to people who are the first-time
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Some legal, theoretical, social and economic preconditions of developments of the current legislation of the Republic of Kazakhstan
condemned to imprisonment). In addition to this fact imprisonment has increased repressive, as associated with the laying on of the convicted defined and sufficiently serious legal limitations: freedom of movement, the possibility of choice to work, work and leisure time, communicate with friends and relatives, etc.
Thirdly, the conviction of a person to prison is a tragedy not only for the convicted person (social isolation, loss of contact with friends, colleagues and even relatives), but also for his close relatives and friends (negative assessment of the neighbors, colleagues, spouses, classmates and etc).
Especially when it comes to top-ranking person of the former Minister, Deputy Ministers or regional akim. Such examples in Kazakhstan, unfortunately became not uncommon.
Fourth, according to well-known scientists, being generally the positive tool for influencing the criminal, such punishment as imprisonment causes certain negative effects, often little-dependent from law enforcement officers. I.e, a serious deformation of the person of the convict is influenced by various factors during his staying in prison.
Famous Russian scientist G. F. Hohriakov said: “ Common sense guides us to suppose that the task of reformation and rehabilitation in isolation from society ... unattainable. Indeed, the aim is to adapt to life in human society, it is separated from the society; wanting to teach him useful activity behavior, contain in an environment where each step is painted that produces passivity; thinking to replace bad habits by useful in the human mind contain it among his own kind that promotes cross-contamination, etc.” [10, 74].
Fifth, the stay of persons in prisons contributes to the criminalization of society.
This problem has economic consequences.
If we take considered problem, the direct costs of the state to implement this type of punishment as imprisonment are very large. Thus, the content of one of the convicted person is 613 thousand tenge per year paid by the state. During 10 years in Kazakhstan costs of the prison system increased by 4.5 times and in 2014 they amounted to 47.5 billion tenge [11].
And nobody counted how much cost is required for the maintenance of ex-convicts after their release from prisons, but they are also large. For example, 19 thousand cleared from the penitentiary institutions in Kazakhstan in 2012; 15 thousand people cleared in 2013; in 2014 are about 13 thousand people [11].
High costs of detention of prisoners caused by their living conditions.
In addition, you must learn and put into practice positive foreign experience of penitentiary organizations for the purpose of that the convict after his release will not become another burden for the state, and having their savings obtained while serving their sentences, easily entered into a new life for him.
It should be reviewed the procedure of prisoners parole. So, instead established in Article 72 of the Criminal Code parole from punishment [4] mandatory deadlines of sentence not less than one-third of a sentence for a minor crime or crime of average gravity, at least half of a sentence for grave
offences; not less than two-thirds of the sentence imposed for the high crimes, not less than three-quarters of a sentence for the offenses referred to in paragraphs 3 and 5 of the third paragraph of Article 120; paragraphs 3 and 5 of the third paragraph of Article 121 of the Criminal Code; at least one third of a sentence for a grave crime, or at least half of a sentence for a high crime, in the case when all the conditions of procedural agreement will be implemented by the convicted it should be charged up to 1 year for a minor offenses, up to 2 years for the crimes of average gravity, up to 3 years for the grave crimes, up to 4 years for the high crimes.
This will provide an opportunity to stimulate sentenced to corrective and significantly reduce the prison population and at the same time to increase the responsibility of prison officers, as well as significantly reduce the costs on the applicable punishment. There are practical cases where the person deserves parole, unreasonably deprived of this right by the legislator.
Moreover the employees of the correctional system with their experience may well deal with the personality of each convict who deserves parole, or who cannot be released before the court sentence becoming in the judgment.
Another equally important issue is the proper organization of training programs for convicts by post-secondary and higher education, as well as training and retraining ofworkers through the narrow specialties. Forms of learning may vary daily, correspondence and distance. The current system of education in prisons designed for those who has no primary education.
When amends to existing criminal legislation by type of punishment, we should also pay attention to the possibility of a maximum limit of the number of persons sent to correctional institutions. It is about minimizing the involvement of citizens in the field of criminal justice, the creation of conditions for wider application of criminal law measures not connected with isolation from society.
In criminal law, the state determines their attitude to commit crimes and enforcement.
In order to strengthen the criminal law of the Republic of Kazakhstan, it would be advisable to take advantage of the Law “On crime prevention” [12] to bring together all the agencies and the public to create a new ideology in society in crime prevention. We should create permanent coordinating body for the implementation of this law within the country at the national, provincial, city and district levels. We should involve all agencies and public organizations, citizens to implement the Message of the President of the Republic of Kazakhstan to the people of Kazakhstan, Leader of the Nation Nursultan Nazarbaev “Kazakhstan-2050”: The new political course of held state about adherence of state to the principle of zero tolerance to disorder [3]. We should use the potential of the country at the highest level (may be the presidential administration or the Security Council).
While organizing the crime prevention it should be taken into account the views of the famous scientist criminologist G. A. Avanesov, he says that crime is generated by the conditions ofsocial life, but it is itselfpart ofthese conditions [13, 18].
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It would be useful to consider the process of crime prevention not only as the impact on crime and as a negative component of society, but also on society, which generates this crime.
This process should involve a broad and large-scale events, the implementation of which would contribute not only liquidation of specific causes and conditions of crime,
but would include the impact on the healthy, law-abiding part of society. This will reduce the use of the criminal law, and thereby minimize the process of engaging citizens in the area of criminal law relations.
Thus, it is necessary to strengthen the preventive orientation of the state and its agencies, as well as an effective fight against crime is directly related to national security.
References:
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2. The conception of legal policy of the Republic of Kazakhstan for the period of 2010 till 2020: The Decree of the RK President from August 24, 2009. № 858. - [Electronic resource]. - Available from: http://adilet.zan.kz/rus/docs/U090000858_.
3. ‘Kazkahstan-2050’ strategy: A new political course of the mature state. The message of the President of the Republic of Kazakhstan - The Leader of the Nation N. A. Nazarbaev to the people of Kazakhstan. - Almaty: Lawyer, 2013, - Р. 48.
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8. Information of the Deputy Secretary of the Security Council of the Republic of Kazakhstan K. Zhanburshina The power on the “zone" was taken by authorities. Source: «Kazakhstan Today» informational agency. [Electronic resource]. - Available from: http://www.kz-today.kz.
9. Statistic data of the Committee of the penitentiary system of the MIA of the Republic of Kazakhstan. [Electronic resource]. -Available from: http://www.kuis.kz.
10. Khokhryakov G. F. A sentence of imprisonment: assessment of efficiency//Soviet state and law - 1989. - # 2. - Р. 187.
11. The conception of the project «Probation and electronic bangles instead of prisons». [Electronic resource]. - ASTANA: KA.ZINFORM. - March 28, 2013. - Available from: http://newskaz.ru/politics/20130328/4918397.html.
12. About crime prevention: the law of the Republic of Kazakhstan//Kazakhstanskaya Pravda - May 12, 2010. - #118 (26179).
13. Avanesov G. A. Crime and social classes. Criminological reasoning: monograph. - М.: Unity-DANA, 2010 - Р. 79.
Sovetkali Yernur,
Kazakh National University named after al-Farabi, student, the Faculty of Law Baysalov Aly Dzhumamuratovich, Kazakh National University named after al-Farabi, candidate of jurisprudence, the Faculty of Law E-mail: [email protected]
Importance of international partnership in prevention of international crime
Abstract: This article discusses the issues of international cooperation in the field of crime prevention. Keywords: prevention, international crime, criminology, International terrorism, Trafficking in drugs and psychotropic substances.
Today all humanity defining its future in a new age passes its way through the sieve of reflection. The world community has the great achievements in Science and Technology, Culture and Art including different fields of industry. But
they are in a low level in the sphere of social politics particularly in international relations. Failing to establish a good order in this field all effects in the history come at a price for the humanity.
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