CRIMINAL JURIDICAL FEATURE OF LAW
BREAKING AGAINST THE INDIVIDUAL
can. of j.sc. U.Ê. Sartbayeva, master Ì.Îshtanova
Human
is basis of the society. Without human,
when his rights and freedom are neglected, society doesn’t exist or isn’t
called human society. As human lives in
the society and is called “human” he
must follow the rules of society and is worth to be called “human”.
The
rights and freedom of the human as a citizen are protected by the state. The 2nd
part of the Constitution of the Republic of Kazakhstan is directly devoted to
this matter. The 1st chapter of the Constitution declares “the most
valuable treasure is a citizen and the life, rights and freedom of the citizen”
Therefore
all legal organizations of the
Kazakhstan Republic, including criminal law are responsible to protect the human rights. The 2nd
chapter of the Criminal Code of the Kazakhstan Republic shows as the main duty
to protect the human and citizen’s rights, freedom and legal interests. All
laws of the Kazakhstan Reublic always dominate to protect the individual, human
rights and freedom. So the first chapter of
the Special part of the Criminal code of the Kazakhstan Republic is
devoted to the criminal offences against the individual. The group object of
all crimes of this chapter is social relations maintaining the right activities
of the indiviual. According to peculiarities of the direct objects crimes
against the individual are divided in the following: criminal offences against
the life: murder, murder of the newborn by the mother, murder in the affect
condition; murder in the excess of the necessary protection; murder during the
excess activities devoted to catch the criminal; reckless homicide; incitement
to suicide.
Crimes
against health: deliberate heavy harm to health, deliberate harm to health of moderate
severity; deliberate harm to health of light
severity; beating; violence; harm
to health in the conditions of affect; heavy harm to
health in excess of self-protection; heavy harm to
health while arresting the criminal; harm to health
by negligence; frightening;
forcing or illegal act to take the human’s parts of body and tissues; venereal
infection; AIDS infection; and other
dangers to health;
Crimes
against freedom of the individual: kidnapping, unlawful deprivation of liberty,
unlawful placing into psychiatrical
clinics, human trade, human cloning;
Criminal
offences against personal dignity and feeling: slander, humiliation;
Sexual
crimes: rape, violance activities of
sexual character, sexual relations with the person under 16; other
activities of sexual character; forcing to sexual activities, sexual activities
of man with man, sexual
activities of woman with woman, or other activities of sexual character,
pushing minorities to commit immoral activities. [1]
As
human is the basis of the society and future, the human health is put in the
first place. Human is not an ideal animal in its development, there are
mistakes in his doings.
Accordding
to E.O.Alaukhanov’s opinion punishing and supporting affect to person’s
behavior. Measures of punishing and
supporting must be applied in the right way. The wrong way of their use, even
they are directed of good will, they cause much harm to the society than
benefit. [2]
There are some criminal ways among them too,
for example: paying for muder.
Lots
of people including teachers state that it is necessary to exclude the
punishment in upbringing. These arguments have not appeared currently, they
have been existing for a long time. Punishment measures are applied for not
doing some activities (social behavior, rules of safety, etc.). People avoiding the punishment have to follow some
requrements.
Punishing
and encouraging are tightly connected with each other. Punishment
doesn’t give right results when encouraging is used. It doesn’t mean one
dominates in punishing and encouraging. Îëàðäû êåøåíä³ òүðäå қîëäàíó
êåðåê. It is necessary to use them complexly.. They both must be used Îë åêåó³í îðûíäû æәíå á³ë³êò³
қîëäàíó êåðåê. At present the system of applying punishment has been
developed, but supporting system hasn’t developed yet. Supporting
measures need to systematyze. It is normal and therefore it must be first
complex in the hierarchical level. Its
system must be more complicated than punishment system. Second, supporting
system must be involved in all public relations. It must encorage a person
forward. Third, this system needs to be developed constantly. Fourth, while
using the supporting measures it is necessary to pay attention on the
induviduality of the person, his interests, tastes, age peculiarities, and etc.
Fifth, supporting procedures must be
devoloped thoroughly.
A
person must feel his well doing helps him, but his wrong doing makes him bad.
As
it mentioned above, supporting measures are one of the preliminary crime
preventing activities.[3]
It is important to determine first what we
should understand in preventing crimes. There aren’t any opinions
on the agreement given by scientists. Some authors explain it as measures of preventing
crimes and eliminating their reasons causing crimes, others “putting objective
and subjective reasons leading to commit crimes”. The
statement of first authors doesn’t reveal the meaning of preventing measures.
And second authors consider the system of preventing measures in general. However it is necessary to eliminate the
subjective opinions, but they can’t be put against objective conditions.
Because the subjective reasons don’t apear without objective reasons.
According
to peculiarities of correctional facilities before the investigator finishes
the investigating, there appears a need to start preventing measures. Even in
some cases it is exercised during the investigation activities. This necessity
appears for example: in breaking safety rules, orders of security and etc. They
are defined in searching the crime place, the investigator gives instructions
to fix gaffes.
When
searching the convict money, weapons and other things prohibited in correctional
facilities can be found. According to their necessity to the case they can be
registered as evidences or the authorities
of the correctional facilities can elliminate them or give to the state
or presrve. In the correctional establishments confiscation of the prohibited
things is one of the forms of punishment in preventing crimes against the
individual.
After
finishing the investigation there will be convenient conditions to prevent
offences against individuals in the correctional establishments. By that time
all circumstances will have been defined completely and comprehensively. In
this case the investigator has several ways of preliminary preventing measures.
The most important of them is suggestions. In correcting establishments
everything is considered and agreed beforehand. Those not less have some
incompetences. These incompetences allow
to commit crimes.
In
the investigator’s recommendation these incompetences must be indicated,
concrete measures to eliminate them. Taking into account the special legal
conditions of the convicted and the danger of them these suggestions must be
execised immediately. In the opposite case individuals are to be responsible
for this. Removing the above mentioned incompetences is one of scenes of
prelemenary preventing measures of the crime.
The
investigator’s legal upringing in the correctional establishments is particular
important in preventing the crimes against the individual and other crimes.
Legal education can be exrcised in the following ways: local TV, delivering lectures, talking
in groups or alone, complex measures held by the workers of the correcting
establishments (showing films, quiz show).
Thus
the investigator’s measures in the correcting establishments preleminary
preventing offences consist of clerical and non clerical measures, in the frame
of its business it is combined with other state authorities, preventing the
relapses, destroying the effective cases to commit crimes and activities
directed to raise the citizens’ legal culture and the important duty of the
investigator.
We
don’t make mistakes if we consider very significant that offenders who commited
crimes angainst individuals should be under the control of administrative
authorities.
Administrative
control is different from other preliminary measures; it is state
forced measure. It is exercised during the definite term. The main goal of this
measure is to prevent the convicted from commiting the crime again. Administrative controlling is a forced
measure and it is also an educational activity. During the
administrative control forcing and upbringing are exercised through inter
harmony.
Upbringing
and forcing measures are in some cases related to each
other. Their combination are in the base of their applying: the opportunity of
the convicted to commit a new crime it is actual basis, and legal basis is
resolution of administrative supression of the police. The main objective of
the upbringing and forcing measures is the same, to prevent the controlled ones
from commiting new crimes.
Upbringing
and forcing measures are linked in definite relations. Their cooperation is in
their use mainly: the opportunity of the convicted doing another crime, it is a
factual argument, and the legal basis is the resolution on administrative controlling
of police organizations. Upbringing and forcing measures have been aimed not to
allow the controlled ones to commit another crimes. The term of their use is
the same.
The
difference of upbringing and forcing, forcing limits some rights of the individual,
and upbringing does not concern any interests. Law enforcement bodies can just
use measures stipulated by law as forcing measures. But upbringing activities
are not limited.
Upbringing
process is based on the rules of pedagogy.
It
is not obligatory to apply forcing measures to all controlled ones. But
administrative procedures must be followed by everyone. In some extent law
enforcement bodies can strengthen the forcing measures or on the contrary make
them lighter. For example, if the controlled one behaves wrong he will be
applied all forcing measures, otherwise all forcing measures are not used. [4]
One
of the actual preventive measures of criminal offense against individual is
preventing the relapse, and it has some reasons. First, relapse crime is more
often. Second, it is proved theoreticaly and practicaly that the former
convicted can change the criminal atmosphere. Third, relapse has not been
researched thoroughly from the social, psychological and statistic nature.
Preventive
measures of relapse criminal offense against individual give psychological
effect. And it is difficult to affect
psychologicaly to those who were trialed and know what the prison looks like
and make them not to commit other crimes. Those who commited a crime and jailed
have definite experiences. And they think when they make other offences they
can’t be caught.
Another
way of preventive measures of relapse crimes is the business of law enforcement
bodies. When they do the business properly lots of crimes are prevented. However
experienced criminals are not easyly caught in the eyes of law enforcement
bodies.
Above
mentioned matters of preventive measures of relapse criminal offense against
individual have not been researched and developed.
To
my mind such psychology does not have affect, we should consider the conditions
that pull them to commit another crime. Thus it is more important to think
about their sattisfation with their material conditions. For example, a convicted man who commited
ordered murder , could return to his business to feed his family and would try
not to make his last mistakes. Second,
the society must not turn back from these persons, otherwise all forcing
measures will be applied. Third, the convicted must be adopted to work during
their cnviction. [5]
The
proverb “labour makes human a human” is the right example to it.
Crimes
against the individuals one of the common subjects for the society and for
philosophy, religion, psychology, ethics, and juridical studies.
In
our state offenses against individual can be viewed in all parts of our life,
in the family, work and policy.
There
have been lots of crimes such as contract killing, beating, violance. These
frequent offences are the result of decreasing of spiritual culture and
increasing of rude behavior.
We
aware that all spheres of our life don’t work properly and there are
unforgivable mistakes in the ethical education. In some cases we notice there
is absense of such kind of education.
During
the soviet times everybody knew that his neighbours never became richer than
they. Now there are a lot of rich people, there are people who became rich
suddenly. Our state might be not ready for such phenomenon.
Our
people understood there had been lots of interests. Beautiful shops in the
streets encourage people to commit “exploits” in order to reach material
benefits and please their passion.
The
investigator has two objectives in his investigating business: first,
preliminary investigations, second, preventive measures. The immediate excite
investigation and completely reveal the crime in time stop the crime and
contribute preventing relapse. The aim of explaining to others who commits a
crime will be punished, is exercised.
In
preventive measures it is also important the events held by other people. The
aims of these events are different. For example, the investigator while
questioning the accused finds out that the other one is intending to commit a
crime. In such case the investigator has the right just to explain the law and
what his wrong intentions may result in.
Therefore,
we should change the conciousness of the society, including the lawyers. With
the criminals there are some people who assist them to avoid the punishment, it
means some lawyers contribute the increase of the crimes.
Our
aim was to realize the nature and reasons of the crimes commited against the
individual and prevent them. It is not only our social but also civil duty.
The list of
literature:
1. A.N. Agybayev, Explanation to
Criminal Code of the Republic Kazakhstan, General and Special parts, Almaty: Zheti Zhargy, 2015, 768 p.
2.
E.O. Alaukhanov,
Criminology, Almaty: Zheti Zhargy, 2005.
3. E.I.Kayrzhanov, Criminal law, general part, Almaty, Zheti Zhargy, 1999.
4. “About the Code of Honour of the State Clergy of the Republic
Kazakhstan” of President of the Republic
Kazakhstan, 2005, May
3, Order ¹1567// Soveregn Kazakhstan, 2005, May 5, ¹ 94.
5. E.R. Rossinskaya, T.V. Averyakova, Encyclopedia of court expertise, Ì,1999.