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22
Section 15. Science of law
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-265-268
Abdukarimova Nazira Eshmuhamedovna, Candidate of legal sciences, Associate Professor, Sub-department of criminal law and procedure of the Department of Law, Kyrgyz National University named after Jusup Balasagyn E-mail: n.abdykarimova@mail.ru Zholdoshaliev Midin Turdumamatovich, Chairperson of the Pervomaiskiy district court in Bishkek Toktorova Aidai Egemberdievna, Post-graduate student and applicant for a degree, Law institute of the Osh State University Niyazbaev Samar Nuredinovich, Post-graduate student, Kyrgyz National University named after Jusup Balasagyn
The system of ways of neutralization of counteraction to investigation in the sphere of narcotics
Abstract: The article is dedicated to a relevant matter of crime investigation in the sphere of narcotics, namely, the system of way of neutralization of counteraction to the viewed kind of crimes.
Keywords: narcotics, drug business, counteraction, criminalistics characteristics of crimes.
As the sources tell, «... such criminal activities as contract murder, kidnapping, organized blackmailing, narcotics, crimes in bank-credit sphere are wide-spread today. It is generally accepted that any criminal offense against a person is a significant threat for the society in the whole, and the above mentioned socially-dangerous doings are not an exception. It is not accidental that the world statistics confirms that these kinds of crimes, having occupied firm positions in the international arena, have become one of the elements of international criminal activity. Herewith, presence of a range of negative phenomena in post-Soviet states (instability in the economy, low level of life, income inequality of the population, quite high percentage of unemployment) have significant effect on the change of the form of organized crime and absence of tendencies for its reduction» [1, P. 127].
Against a backdrop of such situation, it is expected that the crimes in the sphere of illegal drug trafficking become threatening not only on the territory of a separate state, but in the world scale.
It should be underlined that, in our opinion, the specifics of counteraction performed by criminal groups, operating in the sphere of illegal drug trafficking, is determined by the following factors:
Criminal cases with regard to crimes of this category are instituted only in case of detection and seizure of drugs.
The advancement of crimes related to illegal drug trafficking by organized groups is covered by several constitutions. Herewith, in the majority of cases, the activity of an organized criminal group is in either way oriented to the selling of drugs.
The peculiarity of crimes related to illegal drug trafficking committed by organized groups, as it is shown not only by our study
but also by the analysis of special literature, lies in the engagement of law enforcement officials for the purpose of counteraction. The criminals use all methods of impact: bribe, blackmail, infiltration. Bribe, blackmail and even elimination ofthe witnesses for the prosecution is specific.
The ways of overcoming the counteraction during the execution of investigative activities should include procedural measures, various tactical ways directly specified in the norms of criminal and criminal procedure legislation and developed by the criminalistics, use of technical means.
It is recommended to overcome the counteraction to the investigation from the side of such participants as witnesses to the search, specialist, expert, interpreter, legal representatives of the underage suspects (accused), defense attorney with the methods of general purpose. Primarily, it implies strict adherence to lawfulness during the conduct of investigative activities and other procedural actions. Such setting should become a tactical task for the investigators.
Any deviation from the order of conduct of preliminary investigation established by the law, regardless the reasons of it (objective or subjective), will immediately provoke response actions from the side of the defense. A professional attorney acts as defense, who knows well the legislation, its «weak spots»; they know its methods and means used by the subjects of investigation. They can evaluate not only the quality of evidence obtained by the investigator, but also make the process of its obtaining more difficult. Hence, from the position of the defense, such method as the use of any errors and lapses of the investigator with regard to the discrediting of evidence available in the case will, most probably, be a norm. Thus, the sub-
jects of investigation are not entitled to create favorable conditions for the situation of counteraction to the investigation [2, P. 11].
As it has been shown in practice, tactical methods of neutralization of counteraction to the investigation, related to the illegal drug trafficking will include: proper organization of the conduct of investigative activity, choice of place and time of its conduct, preparation of its participants and planning of the course of investigative activity.
We assume that the ability of the investigator to benefit maximally from the very investigative action and its participants is the indicator of the level of organization of the investigative action in terms of obtaining evidence. Here, everything and everyone should be subjected to the solution of tasks set before the investigation.
For the effective overcoming of counteraction to the investigation, the investigator should forecast the actions of all participants involved in the criminal court proceedings for further neutralization of the acts of counteraction from their side. On the assumption of the analysis of literature sources, we reckon that the system of ways on the neutralization of counteraction to the investigation of crimes related to illegal drug trafficking committed by organized groups can be presented based on the following provisions:
1. imposing liability on separate participants of the criminal court proceedings for the prevention of execution of justice and conduct of preliminary investigation as well as other unlawful doings specified in the article 31 of the Criminal Code of the Kyrgyz Republic «Crimes against justice», if their actions contain the features of such crimes, including organization of runaways ofpersons providing evidence, stealing of case materials, physical evidence etc.;
2. use of coercive measures in respect of the participants of criminal court proceedings in accordance with section IV of the Criminal procedure Code of the Kyrgyz Republic for the breach of requirements established by the criminal procedure legislation;
3. use of a combination of tactical ways specified in the norms of criminal procedure legislation as well as recommendations developed by criminalistics during the conduct of separate investigative actions and tactical combinations in the investigation of drug-related crimes.
As the analysis shows, the employees of the investigative bodies have weak comprehension of theoretical basics of criminalistics, the knowledge of which would increase the efficiency of crime investigation. Thus, it is emphasized that «... criminalistic characteristic of the crime (hereinafter — CCC), unlike the criminal legal one, is not an integral part of the general understanding of crime and is of auxiliary nature; and it is a system (complex) of description of criminalistically important features of the type of group and separate crime manifested in the peculiarities of the way, mechanism and environment of its advancement, which gives notion of the crime, personality of its subject and other circumstances, of certain criminal activity and has a purpose to ensure successful solution of tasks of solving crimes, investigation and prevention of crimes. It should be underlined that the importance of CCC for the method of investigation of separate kinds of crimes lies in the following. Firstly, revealing the typical peculiarities of the preparation, commitment and concealment of this type of crimes, criminalistic characteristic helps find most effective tactical ways and technical means of solving them. Secondly, it is a source of information about the tendencies of changes in criminal practice. This information is successfully used in organization and planning of investigation of crimes and it is particularly important in setting out investigative versions. Thirdly, it defines the main direction of investigation» [3, P. 139].
The above stated indicates the importance of CCC. Knowledge of the concepts of conflict investigation is not less important in the conduct of investigative activities. It is especially relevant in the con-
sidered case, when the crime is committed with the participation of an organized criminal group. In this respect, K. A. Isaeva emphasizes «... the development of methods of overcoming of a conflict based on the modern psychological studies in this sphere is absolutely necessary because the exclusion of a possibility of counteraction to the process of investigation from the system of established investigative situations can cause one-sidedness of another nature. The presumption of conflict as well as the proposition of absence of conflict, which are not based on the diagnostics of real situations arising in the process of investigation, can lead only to one-sidedness in obtaining, examination and check of evidence. In the event of the presumption of absence of conflict, the investigator remains unarmed facing a situation when other participants of the criminal court proceedings prevent the establishment of objective truth in criminal case [4, P. 23].
4. solving of issues related to the conduct of forensic enquiry as well as use of non-traditional methods and ways of criminalistics and other sciences.
A lot of difficulties come up in respect of traditional types of studies in this sphere regarding their results in the assessment of conducted expertise from the side of both the investigator and the court. It is proved by repeated requests from either party to conduct repeated investigations. The position of the participants of criminal court proceedings is ambiguous in the conduct of non-traditional studies, for instance, related to the study of the person's character based on their handwriting [192]. Such examination is one of the basic and significant elements of physiological structure of a personality and its characteristics playing important role in the investigation of organized blackmail. As, often, it is related to the need of conduct of forensic psychiatric examinations according to the materials obtained by investigative bodies; herewith, it is significantly different from currently available traditional author studies. The difficulties of use of such information may come up in the event of obtaining unjustified data, which will be used as orientation information and then, the whole investigation of blackmail will follow in the wrong direction. At the same time, the more information is available at the disposal of investigative bodies, including non-traditional objects, the more chances to solve a modernized blackmail with the exposure of the entire circle of involved persons are there.
Thus, the question of use of a polygraph in crime investigation remains current. In this situation, things are ambiguous. For instance, K. A. Isaeva puts emphasis on the following circumstances: «... at present time, there are quite many recommendations on the ways to deceive a polygraph, which are in abundance on the Internet; i. e. polygraph, like other machines, is not an ideal means and may also give an inaccurate response. Herewith, considering the conditionally of the proposed division, one should note a deep interrelation of the problems included in the specified groups, their certain «inclusion» one in the other like «matryoshka», when one problem inevitably causes other problems, and, vice-versa, successful solution of one of them creates conditions for overcoming the other ones. For instance, without solving the problem of achievement of required validity and reliability of results obtained with the polygraph at psycho-physiological level, we will not be able to qualitatively solve the problem of correct methodical provision of its use, because good methods can be created and work effectively only based on correct understanding and competent consideration of underlying psycho-physiological laws and regularities. In turn, without creating appropriate methodical base, we will not be able to correctly organize the inclusion and positioning of the technology of use of the polygraph into a unified system of measures of studying of the persons of interest or ensuring the safety within the law-
enforcement or human resource activity. Finally, without reliable, methodologically ensured, lean organizational system, we cannot create a full-fledged legal regulation both from the point of initiation of considered procedure and realization of results obtained during its course. Legal regulator (legislator), before writing the rules and conditions of use of the polygraph, should be absolutely sure that this procedure is actually useful and reliable and will not fault and lead to abuses» [5, P. 24].
There are problems of economic nature during the appointment of expertise, i. e. when special knowledge is not used sufficiently, not only due to the qualification of investigative bodies, but also with the problem of payment for special expertises. Some authors write about it [6].
It should be taken into consideration that the underage are often involved in the commitment of considered type of crimes. As rule, the investigators are limited to the establishment of age of chronological character, which is not admissible in our opinion. In this respect, it is noted in the legal literature that «... one cannot not pay attention to the fact that to establish the age of an underage person, one should define the age not only of chronological order, but also of psychological character, which is undoubtedly relevant in the conditions when, on the one side, there is acceleration of the underage, on the other side, there is a delay in the development of teenagers. It is no coincidence that in the forensic practice, there are often situations causing the need to conduct forensic-medical expertise to identify the age of the underage» [6, P. 93].
5. use of measures in order to prevent neutralization of the persons participating in the investigation, employees of the law-enforcement bodies, victims, witnesses, other accused (suspects) etc., including on the motive of revenge and with the purpose of neutralization of other persons;
6. use of measures aimed at non-disclosure of the data of preliminary investigation during the check of reports about a drug-related crime, plans of conduct of investigative activities, course of their conduct and content;
7. execution of events aimed at revealing and elimination of the influence (by way of threats, bribe, persuasions) on the investigator, prosecutor, judge from the side of officials of the authority, management and law-enforcement bodies, related to the persons who committed crimes in the sphere of illegal drug trafficking or their relatives, in order to prevent falsification of case materials and making of illegal decisions in favor of a certain person or a group of persons from their side;
8. prevention of the influence on the witnesses to the search, witnesses, victims and members of their families, in order to change earlier provided evidence in favor of a certain person (or persons) as well as refusal of it, given by them during questioning in the course of drug-related crime investigation;
9. ensuring of the measures of safety for the participants of the criminal process;
10.use of measures in order to prevent false public opinion and tensed environment of case consideration, preparation of false publications in the media aimed against both the investigation of drug crimes in the whole and discrediting of the participants;
ll.solving the matters concerning international cooperation in the sphere of counteraction to drug business. In this respect, we divide the opinions ofthe scientists as oftoday: «... there are some other problems, which haven't been solved fully at the moment; it refers to such issues as the conformity of the procedure order and procedure of conduct of procedural actions to the national legislation of the party in question; definition of the responsibility of the persons avoiding personal appearance for giving testimony or refusal to do so without any reasonable excuse, for providing false testimony deliberately, for prevention of the execution of (investigative) procedural actions; issues regarding the expenses related to the conduct ofprocedural actions in the whole and with the help ofvid-eo communication in particular should be solved. There are many disputes concerning such aspects of international cooperation as use of preventive measures towards persons to make them criminally liable, concerning the matters of releasing of a citizen to another state, creation and activity of joined investigation groups during the investigation of transnational organized crime etc., which indicates the need of further joined activity of interested states in this directions, as well as the implementation of a range of agreements in the national legislation» [1, P. 135].
However, this doesn't solve problems, which also appear before the states.
To conclude this article, let us pay attention to its main theses. Counteraction to investigation, as scientific category, can be defined as the activity on counteraction in any form to the conduct of all-sided, complete and objective investigation. The content of the notion «counteraction to investigation» should be filled with the information of exclusively criminalistic importance, concerning all possible forms, types, ways and methods on creation of difficulties and hurdles for investigation of a criminal case.
Such knowledge should be laid in the foundation of methodical recommendation for persons performing the investigation, on the choice and use of technical and tactical-criminalistic ways: during the formation of the system of evidence, prevention of conflict situations, development of means and ways designed to solve conflict situations, overcoming of different difficulties accompanying the investigation, minimization of negative consequences in the events of appearance of conflict situations or different difficulties accompanying the investigation in the formation of the system of evidence.
Counteraction to investigation acts as an independent structural element of private method of investigation of crimes related to illegal drug trafficking committed by organized groups. This phenomenon is associated with not only the crime itself but also the process of its investigation. On the one side, knowledge about the forms, types, kinds, ways of counteraction to investigation and its subjects is required for the program of investigation of crimes related to illegal drug trafficking committed by organized groups in a concrete investigation situation. On the other side, this knowledge applicable to concrete circumstances of the case, personality of subjects of counteraction to investigation allows developing scientific-methodical recommendations on neutralization of actions aimed at counteraction to solving the private tasks of investigation and, in the whole, conduct of all-sided, complete and objective investigation.
References:
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2. Абдукаримова Н. Э. Уголовно-правовая и криминалистическая характеристика наркопреступлений совершенных организованными преступными группами: автореф. дис. ... канд. юрид. наук: - Бишкек, - 2011. - 26 с.
3. Isayeva K. A., Kalbayev A. T., Avgustkhan S. A., Alisherov A. The main prerequisites for forensic classification of assassinations in the CIS countries//B сборнике: Humanities and Social Sciences in Europe: Achievements and Perspectives 8th International symposium. - 2015. - С. 136-146.
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6. Isaeva K. A., Abdukarimova N. E., Oskenbai G., Vorontsova I. N. Die eigenschaften des bewisgegenstandes in den sachen über die jugendstraftaten laut gesetzgebung der Kirgisischen Republik.//B сборнике: The Ninth International Scientific Conferenceon Private and Public Law Proceedings of the Conference. Orzechowska K. (Ed.). - 2015. - С. 88-100.
DOI: http://dx.doi.org/10.20534/ESR-16-9.10-268-270
Ibrayeva Alua Salamatovna, Doctor of Law Professor, Al-Farabi Kazakh National University E-mail: ibraeva_tgp@mail.ru Tursynkulova Dinara Ahanovna, Candidate of Legal Sciences Professor, Al-Farabi Kazakh National University E-mail: adilek03@mail.ru Nussipova Lyatifa, Senior Lecturer, Al-Farabi Kazakh National University E-mail: latifa.nusipova@kaznu.kz Goncharov Sergey Borisovich Al-Farabi Kazakh National University, E-mail: sergei -95-777@mail.ru Ushurbakiev Ashimzhan Abdullaevich, Municipal public institution "School number 75 to them. Sh.Kudayberdyuly"
Problems of improvement of legislation on the state youth policy in the Republic of Kazakhstan
Abstract: In article the legal basses of the state youth policy of the Republic of Kazakhstan are revealed, stages of formation of the legislation in the sphere of the state youth policy are allocated, the scientific analysis of the current legislation is carried out, recommendations are offered.
Keywords: youth, state youth policy, legislation, volunteer activities.
The youth is a special social age-related group, which acquires important functions, such as educational, professional, cultural, etc. The youth differs not only by age, but also by the social status in society. The youth is an object of youth policy and state programs. The youth are citizens of the Republic of Kazakhstan aged from fourteen up to twenty-nine years.
Let's mark out features of youth. The youth quicker perceives all latest information and material developments, scientific discoveries. The youth confidently takes places of adults, eliminates unfashionable, conservative views, representations, changes valuable installations. The youth chooses different vital strategies. It is possible to distinguish certain contradictions from the Kazakhstan youth:
— Highly educated youth and illiterate youth;
— aspiration to self-realization and complete inactivity;
— youth subcultures and countercultures;
— cult of sport and alcoholism and drug addiction;
— rich youth and poor youth.
The youth creates personal system of hierarchies of values, chooses priorities from a number of alternatives, at the same time
relying also on the traditional and modern values that are necessary for them to achieve vital success.
The Spanish culturologist H. Ortega-i-Gasset marked value of the principle of individualism. He believed that new generation is not simply group of unique persons, not combination of circumstances where random individuals age-mates gathered together, but it is qualitatively new efficient "vivifying" force without which socio-historical process can't develop. The thinker considered that it is necessary to bring up generations of the extraordinary, active persons ready to positive changes aimed at perception to something unlike and new. The younger generation should not live only with settled stereotypes, with classical reference points in activities, it shall introduce "something" new, individual, personal.
Thus, the youth is best of all adapted for implementation of innovative projects and technologies in various spheres of activity. The youth is aimed to reception of new knowledge and implementation in life of the new ideas. The youth is mobile and full of strength for construction of the life. These qualities distinguish the Kazakhstan youth. For this reason, the youth is perceived as the main strategic resource of our country today. Let's quote words of the
