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Nurmoldaóeva A.M. Kazakh National University after Al-Farabi. |
Given the particular relevance of the topic, it should be noted
immediately that the legal (lawful) discrimination
based on sex in the public aspect
is lacking, since the similarity of the rights and opportunities enshrined in the Constitution of the Republic
of Kazakhstan. Specific regulatory restrictions on the rights and freedoms of the fairer half of humanity cannot be in conflict with the constitutional provisions
in the public aspect and social paradigm.
At the same time, it does not mean that women as full members of the humane
society adequately protected
in a comprehensive and multifaceted
extent to which they really need in exercising their constitutional rights.
Legislator
in different resolutions gives them different preferences, which are actually
in any modern development of society are given to women, as their extraordinary
and multi-faceted role in society is taken into account. For example, enactor
recognizes and according to various fundamental opportunities for men and women
subjects to legal regulation the nuances associated with the rights of women
taking fully into account their maternal status in determining their status as
a full employee and in almost all other possible quality [1].
We also use the opportunity to reiterate the need, if I may say so -
"positive discrimination",
ie - usually of
disadvantaged sections of society
certain privileges. However, the
question of law, justice and the
need for positive discrimination is
not a foregone conclusion at this
point, although it is quite
relevant.
But for us it is of great interest that issue of how women's property rights protection is guaranteed by the Constitution and the protection of motherhood is guaranteed by the current legislation of the Republic of
Kazakhstan [1].
This raises the question if is it possible to treat
violence against women as a sign of discrimination based on gender differences or a
phenomenon particularly common
crime and are obliged to consider
the legal aspects of combating organized crime?
Article 26 of the International Covenant on Civil and Political
Rights stipulates the prohibition
of any discrimination, including
those based on sex: "All
people are equal before the law and
have the advantage of without any kind of discrimination to equal protection
under the law. In this respect every kind of
discrimination should strictly prohibited by the law and, accordingly, is
punishable by law, and also, the law is obliged to ensure to all persons equal
and effective protection against discrimination on any grounds whatsoever - the
presentation of a certain race, a certain color, by differences of gender, age
characteristics, specifics of the language chosen religion, political or other
preferred belief, national or social origin and status, property, birth or
other circumstances "[2].
In the
Criminal Code of Republic of Kazakhstan, in force
since 1 January 1998, various obstacles (Article 120) being in the role of the
state, public, cultural
activities or other active
actions that violate equality, using pressure, threats, with illegal use of material or other dependence
punished imprisonment for up to 3 years.
At the present stage in the current Criminal Code, which
came into force from January 1, 1998
violation of the law on equality against women is not considered separately and, accordingly, is not regulated. Such a corpus delicti - a violation of equal
rights (Article 141), implies a direct or indirect restriction (violation)
human rights and freedoms, including gender-based and contains a form of
punishment, as arrest for up to 3 months, or imprisonment up to 1 year or a
fine of one thousand MCI. The same crime committed by a person with illegal
use, ie Abuse career status is punishable by imprisonment for up to 6 months,
or imprisonment for up to 2 years, or a fine of up to 2 thousand MCI [3].
Appeal to the current law, of course, determines what
is at the forefront of the normative aspect that shows that violence against women
is not discriminatory and is not recognized by law. At the same time, it is much more ticklish, if
the restriction of the rights or
their shyness in some way represents the mercantile and ugly form of
attacks on a person's personality.
Domestic violence is a latent form,
which is an opportunity to stay outside
of official statistics and, directly,
the interest of law enforcement. As a rule, many victims
of domestic pressure often
do not have access to this legal system of
the country.
Domestic violence has a negative impact on society as a whole. Consequences leading to a significant increase in the number of disadvantaged families,
which leads to more frequent divorce,
as a consequence - deprivation of
parental rights, an increase in juvenile crime, suicide, murder,
apart from causing bodily injury and
moral state of a person's identity. Almost all of the facts of pressure and violence against women,
unfortunately, remain unrecorded,
truth and in fact, more of them than the statistics indicate.
The presence of similar facts truly makes this
kind of offenses - offenses without the appropriate criminal penalties.
Law of the Republic of Kazakhstan dated 04.12. 2009 N 214-4 «On the Prevention of Domestic Violence", has introduced a
lot of new, more administrative and legal aspects, namely, in the field of
combating domestic pressure
[4].
The legislator tried to take into account the positive experiment in
foreign countries. For example, there was the experiment on barring order in Finland considered
- which means that a person who is likely to endanger life or inaction
of any other person, shall be prohibited
to approach to that person. The penalty
for failure to comply with the
barring order is determined fine or such measure of restraint as deprivation of liberty for up to 1 year.
The application for a court decision to impose restraining order established by law shall be
submitted to the Finnish police, or directly to the court in
oral or written form. Request for a barring order is constantly considered on
an expedited basis, in the case of urgency, and the urgent need to organize an appropriate level of safety of the woman. The validity of the barring order on settlement is determined by the court, but for no longer
than 1 year, renewable on the
basis of a new court decision.
For legitimate
judicial appointment of restraining order, the irrefutable material should be provided, for
example, the opinion of the doctor, to find a third-party witnesses. Prohibition on the approximation
in the base form prohibits contacts, contacts the
sample, compliance and supervision, given the prohibition even
to stay in any particular area associated with
life protects the face. The initiative for a judicial ban on the approach may
further hand, needing protection,
to be the part of the police, the prosecutor or the body of public protection.
Referring to the Criminal Procedure Law and analyze it on an object
that has any
prospects for strengthening safeguards
for the protection of women's rights.
There is the Law of the Republic of Kazakhstan dated January 18,
2011 ¹ 393-IV «On
Amendments and Additions to Certain Legislative
Acts of the Republic of Kazakhstan on the upcoming humanization of criminal
legislation and strengthening the
rule of law guarantees in
criminal proceedings" which was not so long ago
adopted and entered into force. Section
2 of Article 140 of Code of Criminal
Procedure in the new edition of
the above mentioned law states that: "The use of various means of tracking is allowed, subject to measures to conceal them from the
surrounding surveillance is
required to be implemented taking
into account the places and ways
to move, and even age, health, home location and a certain way of life".
In
such case, edition of the provision does not provide a full explanation and
there is no distinction on the personality associated with gender and gender
differences. True that even the simple life and health differences between men
and women is very significant. For example, in the US, where the
representatives of fair sex were allowed to work in the Navy in nuclear
submarines, the administration of the US DOD faced with the fact that the
existing living conditions at nuclear submarines are not designed or equipped
for everyday women's physical needs.
In addition,
according to Article 2 of the Law of the Republic of Kazakhstan "On state guarantees of
equal rights and equal opportunities for
men and women" of 08. 12. 2009 are not listed as
discriminatory on grounds of sex.
Presented measures are aimed at:
1)
maternal and child health;
2)
protection of women (maternity leave);
3)
increasing the life expectancy of men;
4)
protection of the rights and freedoms of women in the criminal and penal laws of the
state [5].
Ending with a
theoretical presentation of topical issues of legal protection of women's
rights, I want to emphasize that after the presence of the facts of domestic
violence and violence against women in general, the problem of representation
of women in the labor market and stay in power arises.
References
1.
The Constitution of the Republic of Kazakhstan (adopted at the national
referendum on 30 August 1995) (as amended as of 02.02.2011 r.) - //
"Kazakhstanskaya Pravda" on September 8, 1995 .;
2. The International Covenant on Civil and Political Rights. - Adopted by
General Assembly resolution 2200A (XXI) Gen.Assamblei from December 16, 1966
3. Commentary on the Criminal Code of the Republic of Kazakhstan. - Almaty:
"Publisher" Zheti Zhargy ", 2007- 992 p.
4. The Law of the Republic of Kazakhstan on December 4, 2009 ¹ 214-IV «On
Prevention of Domestic Violence" (with amendments and additions as of
29.09.2014 r.) - // "Kazakhstanskaya Pravda" dated December 12, 2009
¹ 293 ( 26037)
5. The Law of the Republic of Kazakhstan dated December 8, 2009 ¹ 223-IV - //
"Kazakhstan truth" from 15.12.2009, ¹ 294 (26038)
Summary
The paper presents a theoretical analysis of topical issues on the protection of
women's rights in the Republic of Kazakhstan. Some features of legislators’ approaches to prevention of domestic violence and discrimination against women in the
gender-specific.