9National University of Uzbekistan
Google Scholar indexed
DOI: 10.24412/2181-1385-2022-2-169-174
SOME PROBLEMS OF IMPROVING THE PROVISIONS OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN
K. R. Sarykulov
Candidate of Juridical Sciences, Associate Professor, M. Auezov South Kazakhstan University, Shymkent, Kazakhstan
kurman_sr@mail.ru
S. B. Abutaeva
master of law, st. Lecturer, Department of Criminal Law and Criminal Procedure, M. Auezov South Kazakhstan University, Shymkent, Kazakhstan
e-mail: asb8008@mail.ru
АННОТАЦИЯ
Новый Уголовный кодекс Республики Казахстан, вступивший в силу с 1 января 2015 года, разработан и принят в целях приведения национального уголовного законодательства в соответствие с современными требованиями и эффективно выполняет основные регулятивные и охранительные функции, возложенные на него. Вместе с тем, в целях дальнейшего совершенствования действующего уголовного законодательства необходимо будет приложить определенные усилия по пересмотру некоторых его институтов и норм, ориентируясь на отдельные положения Общей и Особенной частей УК. Основной целью дальнейшего совершенствования уголовного законодательства является обеспечение государством действенных мер защиты законных прав и интересов человека на новом этапе развития общества, новом этапе исторических событий в нашей стране. В целях совершенствования положений Общей и Особенной частей Уголовного кодекса Республики Казахстан необходимо пересмотреть некоторые его положения и внести изменения и дополнения. Внедрение принципов уголовного права важно для того, чтобы создать фундаментальную основу для ведущих идей, заложенных во всей системе уголовного права. В правовом государстве совершенствование уголовного и уголовно-процессуального законодательства служит инструментом реализации уголовной политики, направленной на совершенствование общественных отношений. В настоящее время в стране большое внимание уделяется совершенствованию законодательства в этой сфере.
Ключевые слова: право, нормы, принципы, уголовная политика, положения, нормативные постановления, конвенции, ратификация.
April, 2022
169
DOI: 10.24412/2181-1385-2022-2-169-174
ABSTRACT
The new Criminal Code of the Republic of Kazakhstan, which entered into force on January 1, 2015, was developed and adopted in order to bring the national criminal legislation in line with modern requirements and effectively performs the main regulatory and protective functions assigned to it. At the same time, in order to further improve the current criminal legislation, it will be necessary to make certain efforts to revise some of its institutions and norms, focusing on certain provisions of the General and Special Parts of the Criminal Code.The main goal of further improvement of criminal legislation is to provide the state with effective measures to protect the legitimate rights and interests of a person at a new stage in the development of society, a new stage of historical events in our country. In order to improve the provisions of the General and Special Parts of the Criminal Code of the Republic of Kazakhstan, it is necessary to revise some of its provisions and make changes and additions. The introduction of the principles of criminal law is important in order to create a fundamental basis for the leading ideas embedded in the entire system of criminal law.In a rule of law state, the improvement of criminal and criminal procedure legislation serves as a tool for the implementation of criminal policy aimed at improving social relations. Currently, the country pays great attention to improving legislation in this area.
Keywords: law, norms, principles, criminal policy, regulations, conventions, ratification.
In the context of the rule of law, law, including criminal law, takes precedence. Our state, formed in accordance with the Constitution as a democratic and legal state, proclaims man, his rights and freedoms as the highest value of society and the state. Ensuring the protection of the interests of society and the state requires in-depth and comprehensive consideration of issues of criminal law.
Criminal law is historically variable, as the continuous development of industrial and other public relations requires constant adjustment of criminal law. Development and adoption of norms of criminal legislation, their improvement, as well as their subsequent application in judicial practice contribute to the prevention of criminal offenses, educating citizens in the spirit of compliance with the Constitution of the Republic of Kazakhstan and other norms. In a state governed by the rule of law, the improvement of criminal and
criminal procedure legislation serves as a tool for the
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DOI: 10.24412/2181-1385-2022-2-169-174
implementation of criminal policy aimed at improving public relations. Currently, the country pays much attention to improving the legislation in this area. However, there are inconsistencies in the regulation of criminal relations. In this regard, it is necessary to study and analyze the state of legislation in these areas.
It must be acknowledged that now is the time to raise the issue of the need to make scientifically based changes and additions to the existing legislation of the country, and thus achieve the stability of the legislation. The instability of the country's legislation does not contribute to the effectiveness of law enforcement practices, the successful implementation of measures to combat crime.
Any large-scale update of sectoral legislation is an important historical period, which allows not only the legalization of new achievements of legal thought based on the current process of development of public relations, but also the elimination of accumulated gaps and contradictions in the law. Undoubtedly, the newly adopted norms should not contradict the established basic rules and should not cause additional contradictions.
However, when analyzing the Criminal Code of the Republic of Kazakhstan, which came into force on January 1, 2015, there are a number of issues that need to be addressed through public discussion. In some cases, there is a simple editorial imperfection of the norm, while in others there are significant profound contradictions between the new and old rules. Also, some issues are taken from the previous repealed laws and new ones are introduced.
Part 1 of Article 1 of the Criminal Code states: "Criminal legislation of the Republic of Kazakhstan consists of this Criminal Code of the Republic of Kazakhstan. Other laws providing for criminal liability shall come into force only after their introduction into this Code. Of course, it is known that this is not about the whole law, but about its individual norm or individual norm of criminal liability [1].
For example, our country ratified the International Convention for the Suppression of Acts of Nuclear Terrorism by Law No. 33-IV of May 14, 2008. This Convention, which is part of this law, is quite extensive in content, it contains many organizational issues. However, the list of criminal acts is limited to Article 2 of the Convention:
1. Any person under the substance of this Convention, if it is illegal or intentional:
a) possesses or manufactures or possesses radioactive
material:
I) with intent to kill or seriously injure; or
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DOI: 10.24412/2181-1385-2022-2-169-174
II) with the intent to cause significant damage to property or the environment;
(b) The use of radioactive material or equipment in any way or in such a way that a nuclear facility releases or threatens to release or damage radioactive material:
I) with intent to kill or seriously injure; or
II) with the intent to cause significant damage to property or the environment;
or
III) uses an individual or legal entity, an international organization or a state with the intention to compel him to commit or refrain from any action.
2. Also anyone, if he:
(a) Threats to commit the offense referred to in paragraph 1 (b) of this Article, as well as indications that the threat is real; or
(b) Unlawfully or intentionally requires radioactive material, equipment or a nuclear object, and commits a crime based on circumstances or violence that clearly indicate the danger.
3. Any person shall commit a crime even if he attempts to commit any of the crimes referred to in paragraph 1 of this Article.
4. Any person if he:
(a) Participates as an accomplice in the commission of any of the offenses set forth in paragraphs 1, 2 and 3 of this Article; or
(b) Organizes or directs other persons for the purpose of committing any of the offenses set forth in paragraphs 1, 2 and 3 of this article; or
c) commits a crime in any other way by a group of persons acting for a common purpose, assisting in the commission of one or more of the crimes referred to in paragraphs 1, 2 and 3 of this Article; such assistance must be intentional and either in order to support the general nature of the criminal act or the interests of the group or to facilitate the intent of the group committing the relevant crime or offenses
Therefore, only the individual provisions of the Convention, not the whole Convention, are reflected in Article 162 of the Criminal Code of the Republic of Kazakhstan "Production, acquisition or sale of weapons of mass destruction."
Paragraph 3 of Article 4 of the 1995 Constitution of the Republic of Kazakhstan stipulates that international treaties ratified by the Republic, ie ratified by the Parliament by adopting the relevant law in accordance with the established procedures, take precedence over its laws. During the constitutional reform of 2017 in 1995
[2].
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DOI: 10.24412/2181-1385-2022-2-169-174
An important addition was made to paragraph 3 of Article 4 of the Constitution.
In accordance with Article 11 of the Law on International Treaties (International Treaties to be Ratified), the following:
1) the subject of which are human and civil rights and freedoms;
2) implementation of changes in existing laws or new laws
requiring admission, as well as establishing rules other than those provided by the legislation of the Republic of Kazakhstan;
3) on the territorial demarcation of the Republic of Kazakhstan with other states, including international agreements on the crossing of the State Border of the Republic of Kazakhstan, as well as the demarcation of the exclusive economic zone and the continental shelf of the Republic of Kazakhstan;
4) on the basis of interstate relations, on issues of disarmament or international arms control, ensuring international peace and security, as well as international peace treaties and international treaties on collective security;
5) interstate associations and international organizations of the Republic of Kazakhstan
on participation in organizations, if such international agreements provide for the transfer to them of the exercise of part of the sovereign rights of the Republic of Kazakhstan or establish that the decisions of their bodies are legally binding on the Republic of Kazakhstan;
6) on public debts;
7) on the provision of economic and other assistance by the Republic of Kazakhstan, in addition to humanitarian assistance and official development assistance;
8) at the time of signing, the parties to the negotiations agreed on their subsequent ratification;
9) international treaties are subject to ratification, if international treaties provide that such an agreement is expressed through ratification [3].
According to the results of research conducted in accordance with the provisions of the General Part of the Criminal Code, the following shortcomings and deficiencies were identified in this regard. In particular, Article 1 of the Criminal Code provides inconsistencies in the sources of criminal law of the Republic of Kazakhstan.
The second part of the above article states: "Regulations of
the Constitutional Council and the Supreme Court of the Republic
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DOI: 10.24412/2181-1385-2022-2-169-174
of Kazakhstan are an integral part of the criminal legislation of the Republic of Kazakhstan" [1]. It should be noted that the normative decisions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan are an integral part of criminal law, not criminal law.
In accordance with the provisions of the Law of the Republic of Kazakhstan dated April 6, 2016 № 480-V on legal acts, regulations are not laws. The first part of Article 1 of the Criminal Code states: "The criminal legislation of the Republic of Kazakhstan consists of this Criminal Code of the Republic of Kazakhstan. Other laws providing for criminal liability shall come into force only after their introduction into this Code "[4].
Thus, the above-mentioned inconsistency is not mandatory under criminal law and although it does not adversely affect law enforcement practice, for the sake of correctness of the legal norm it is removed from the wording. »Should be replaced. The provisions of the second part of Article 1 of the Criminal Code contradict the first part of that article. Recognition of regulations as an integral part of criminal law actually means that they are recognized as law. Therefore, it is necessary to remove from the second part of Article 1 of the Criminal Code of the Republic of Kazakhstan the sentence "Normative decisions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan are an integral part of the criminal legislation of the Republic of Kazakhstan."
REFERENCES
1. Criminal Code of the Republic of Kazakhstan, July 3, 2014 № 226-V RKZ.
2. Law of the Republic of Kazakhstan dated May 14, 2008 N 33-IV on ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism
3. Law of the Republic of Kazakhstan dated May 30, 2005 N 54 on international agreements of the Republic of Kazakhstan.
4. Law of the Republic of Kazakhstan on Legal Acts of April 6, 2016 № 480-V RKZ.
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