Tatarinova L.F.

Ph.D., assistant professor of "Jurisprudence and International Law",

"Turan" University

Republic of Kazakhstan, Almaty

Problems of Legal Regulation of Combating Domestic Violence in the Republic of Kazakhstan

Annotation. Domestic violence is a problem of the whole civilized humanity, regardless of social status, origin, nationality, age, race of victim and rapist. However, based on the analysis, the author managed to identify several universal reasons of the phenomenon such as domestic violence.

The article reveals the legislative basis of combating the phenomenon of domestic violence on the territory of the Republic of Kazakhstan.

Key words: family, violence in family, domestic violence, the cyclical nature of domestic violence, the causes of domestic violence, the danger of domestic violence.

The problem of domestic violence was and remains one of the acute problems of modern society, as evidenced by the increase of the number of cases and forms of domestic violence. The conditions for the emergence and spread of violence as a social problem are studied by sociologists, psychologists, historians, jurists, as well as representatives of other humanitarian sciences in many countries of the world community [1; 2; 3; 4].

The family from time immemorial is considered as a concept both social or legal, and traditional, cultural and moral. In the family often face different characters, fates, habits, which naturally can serve as the emergence of conflict situations. There are many ways to solve these conflicts, for example, reaching consensus, the ability to postpone the conversation until the right moment. However, there are also negative ways to resolve the conflict, the most "ugly" of which is the use of violence in the family and household sphere.

The Constitution of the Republic of Kazakhstan guarantees the right of every person to life, physical and moral integrity, personal freedom and security, as well as honor, freedom of private life and a number of other rights. The protection of human life and health is also a priority in the criminal legislation of Kazakhstan. In the face of increasing stressful situations, moral disorientation and material difficulties, violence in many situations has become commonplace. However, in most of these cases women are victims of domestic violence.

On January 1, 2010, the Law on the Prevention of Domestic Violence came into force, which became the basis for eradicating arbitrariness in the family, clearly articulating the conceptual apparatus, defining such concepts as the victim, family-household relations, domestic violence, types of domestic violence, prevention and subjects of prevention of domestic violence. This is a serious breakthrough in the legislation. However, the problem has not gone away. The law has appeared, but no one has canceled the objective realities that have developed over many years.

According to the researches, the direct costs in cases of domestic violence are primarily borne by the state, because it ensures the activities of services that are more or less related to the problem of domestic violence. "Often the victims lose their ability to work, and if they do not work, they do not transfer taxes, the fees in the treasury fall, and as a consequence, state employees sit without pay, older citizens - without benefits and pensions. On the contrary, the victims have to pay benefits", asserts A. Eliferenko [5, p.34].

The prevalence of gender and sexual violence in Kyrgyzstan is associated with the prevalence of general discriminatory practices against women and children, such as bride kidnapping, early and forced marriages, sexual and family violence in the family. According to the study of the Women's Development Fund of the United Nations: "The overwhelming majority of the respondents (80%) agree that there is a problem of domestic violence against women, therefore, the tendency of criminalization in the family is increasing, which criminal factors are such actions such as physical beating of women, beatings, torture, marital violence "[6].

Since November 2016, with the support of the General Prosecutor's Office of the Republic of Kazakhstan, the "#NelMolchiKZ" movement has conducted more than 50 lectures with various audiences on various topics in several cities of Kazakhstan. In the framework of the road map "Protecting Children Together" in general, 3,500 students were enrolled in Almaty, Astana, Karaganda, Semey, Talgar, Kaskelen, in five regional centers of the Akmola region. The activists of the movement raised acute questions concerning violence against children and women, the attitude of society towards this problem, talked about stereotypes and ways of solving problems [7].

Thus, the problem of violence against women, both in the private sphere and in the public sphere, is quite relevant for modern Kazakhstan. Despite the existence of certain legislative norms and national policy documents, forms of violence, such as trafficking in women for sexual and labor exploitation, sexual harassment in the workplace and in educational institutions, rape, as well as a wide range of violence against women in the private sphere (beating of women, psychological violence, economic control, early marriages, bride kidnapping, coercion to marriage, hidden polygamy, etc.) continues to take place in Kyrgyzstan. This problem is exacerbated by the absence in the current criminal law of definitions of such concepts as: "violence", "criminal violence," "physical or psychological violence", their threats, as well as explanations of the meanings of other terms that characterize the various violent behaviors with which penal legislation operates.

The notions of "violence" in the legal doctrine may be a starting point for making appropriate additions to the criminal legislation of Kazakhstan, which is implemented taking into account the narrow characteristics inherent in domestic violence [8, p.34].

Together with the peculiarities inherent to domestic violence, it can be divided into the following types: physical violence, emotional and psychological violence, sexual violence, economic violence, the use of children to control the adult victim, etc.

All of the listed forms of violence are found in the family. As the experience of the work of crisis centers shows, most often is manifested first the psychological violence, which at a certain moment is supplemented by physical actions of different severity, and then it can develop into physical or sexual violence.

Let us note that the criminal law science of Kazakhstan is based on the traditional definition of violent crime as a crime associated with physical or mental violence. In the legal literature, mental violence is understood as the different role of the threat, while the term "mental violence" in the Criminal Code of the Republic of Kazakhstan is not applied, but the criminal law gives two possible forms of manifestation of mental violence: threat and coercion. The most common type of threat is the threat of physical violence - murder, causing harm to health, imprisonment, but along with it there is also a threat with the use of mental violence.

To date, statistics on family violence are not divided by sex and do not include indicators on the content of the sentence and the term of imprisonment of convicted persons. In general, the data available at all levels largely do not reflect the real situation, in particular because of the imperfection of statistical forms, the lack of electronic databases at the agency level, weak control over the provision of information, etc.

The process of dealing with the facts of domestic violence is characterized by the lack of necessary conditions for providing assistance to victims and related services, for example, in Kazakhstan there are more than 10 crisis centers and other structures providing assistance in cases of family violence, which are carried out through charity and donor funds. Specialized services to provide assistance to victims of domestic violence on a state or municipal basis are not available, while domestic violence involves a violation of human rights.

According to experts in Kazakhstan, as in most Central Asian countries, the key problems that determine the violation of human rights in cases of domestic violence are:

- the access to justice - lack of a gender-sensitive approach, lack of resources and capacity in law enforcement agencies to deal with cases of domestic violence;

- to protect the victims - the instability (financial, institutional) of the existing system of providing assistance to the victims, including the lack of state support for public crisis centers and shelters [9].

Another important feature of domestic violence is its cyclical nature [10]. Relations in the family where domestic violence takes place develop in a circle, repeating from time to time, passing through the same stages. Over time, violence is repeated and happens more often. Violence becomes a predictable model of behavior that has its own cycle, which includes three stages: the stage of voltage build-up; stage of active violence; a stage of repentance and "love". The last stage does not last long, the cycle is repeated soon.

The existence of such a phenomenon as domestic violence is attributed by some specialists to the disproportionate amount of time spent with family members, the intensity of intra-family relations, and the "struggle of the sexes" for power. At the same time, the family, like other social organizations, is viewed as an imperious system in which power is unevenly distributed between parents, spouses, children.

At the same time, we note that to date there is no one specific prerequisite for domestic violence which has been established. The opinions of many psychologists and sociologists are still divergent, even though many studies have been carried out.

So, one of the assumptions about the causes of domestic violence was the version about the dementia of the aggressors. This statement was quite convincing and was considered scientifically sound for a long period of time. Soon this theory was questioned. After carrying out numerous psychological and psychiatric examinations, it became clear that the majority of aggressors on the contrary are absolutely mentally healthy people.

Based on a thorough analysis of the specialized literature, it is possible to single out the universal reasons of domestic violence: an innate desire for power and control over a partner; copying the model of parent-child relationships, as well as the stress resulting from unfavorable circumstances in the family; low culture of behavior (obscene language, disrespectful attitude towards a partner), lack of understanding of the needs of the partner in attention, care, support and mutual understanding; alcoholism or drug addiction of one or two family members when the person does not report for his actions, under the influence of certain psychotropic drugs; a difficult financial situation, aggravating the stage of tension and excluding the victim from the abuser; violence engendered by religion, regardless of the presence of causes, most often occurring in sects; career growth of the victim, "destroying" the self-image of the rapist and provoking him to acts of violence; presence of factors "from the outside", which include alcoholism, drug addiction among the population, increased antisocial behavior, weakening of social control over violence; propaganda and demonstration of cruelty, aggression, violence, eroticism in the media, imposing a certain perception of culture in society [11].

Being the basic structure of society, the family reproduces not only its main value - human life, but also social and cultural values, political and economic relations, therefore the increase of domestic violence undermines the foundation of the security of the whole society as a whole and becomes an illegal phenomenon. Therefore, among the priorities of any state and society is to seek and find ways to stop the mutilation of the society by such a manifestation as family violence. But it would be frivolous to think that the solution can be found easily, because there are many obstacles to the solution of this problem.

Thus, we have the following conclusions:

1. The current situation is exacerbated by the absence of a separate legal category in the national legislation of Kazakhstan, adding this concept to domestic violence.

2. The state needs to pursue a sound social, legal, economic policy, since if the state itself is stable and strong, the issues of domestic violence will decline. The state needs to nurture a happy, prosperous population, to ensure the viability of modern and democratic Kazakhstan.

3. The problems of family violence both in the Kyrgyz Republic and in other states exist and threaten the entire civilized world. Family violence breaks down society from the earliest stages of the life of each individual. This is a social disease that engenders the moral destruction of an individual and must be fought first of all by the state by creating favorable conditions for life, development and improvement of its citizens.

List of references:

1. Dobash, R.E. Dobash, R.P. “Women, Violence and Social Change”. London: Routledge, 1992.

2. Алексеева Л.С. Психологическая помощь пострадавшим от семейного насилия: Научно – метод. пособие. - М.: Гос. Науч.- исслед. Ин-т семьи и воспитания, 2000.

3. Radbill, S. A History of Child Abuse and Infanticide. Chicago: University of Chicago Press, 1980.

4. Field M., Field H. Marital Violence and the Criminal Process: Neither Justice nor Peace. - Social Service Review, 1973. - 47 (2). P. 221-240.

5. Елиференко А.А. Деятельность кризисных центров в Кыргызстане. - Бишкек. 2011.

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9. Тугельбаева Б.Г. Система профилактики семейного насилия: проблемы и пути их решения. Бишкек. 2013.

10. Johnson, A.G. The Blackwell Dictionary of Sociology: A User's Guide to Sociological Language. Maiden (Mass.); Oxford: Blackwell, 1997.

11. Алимбекова Г. Т. Насилие в отношении женщин - это преступление или беззаконие?: Социальный анализ // Центр изучения общественного мнения // http://www.ciom.kz/upload/userfiles/files/Nasiliye_v_otnosheni_zhenshin.pdf