Bauberikova A.B., Tugelbayev U.E.
M. Kh. Dulaty Taraz State University
Legal aspects of probation and the appointment of probation monitoring under the legislation of the republic of Kazakhstan
In the concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020, is approved by presidential decree of the Republic of Kazakhstan, dated to 24 August 2009 ¹ 858 and determined that in order to ensure the conformity of national law the new challenges it is necessary to improve standard-setting and enforcement activities of the state and that "the most important link of legal policy of the state is the criminal policy which improvement is carried out by a complex, interconnected correction criminal, criminal-procedural and criminal-Executive law and enforcement". In addition, it is noted that in order to minimize the involvement of citizens in the field of criminal justice, the economy of measures of criminal repression it is necessary to create conditions for wider application of criminal law measures not involving isolation from society. In this case the law and jurisprudence should develop approaches in which the choice of the type and measures of criminal and legal impact would be based primarily on accounting data on the most probable effectiveness of a particular individual. At the same time for more active application by the courts of alternative measures to deprivation of liberty, it is necessary to increase the effectiveness of their execution, which requires institutional development of a specialized body responsible for the execution of such measures.
One of the ways of solving of these problems is the improvement of the legislative regulation and the practice of application and execution of the Institute's probation because it allows the real execution of imposed sentence of punishment to achieve his purpose against the perpetrators of not representing a great social danger of the act. In addition, the Institute of probation is currently of great importance as an alternative to imprisonment, and he becomes the most common measure of criminal and legal impact under the criminal legislation of the Republic of Kazakhstan.
Improvement of institutions of social control in European countries has coincided with the development of a differentiated approach in society to the offender. This approach, by remark Foinitsky I. Y., was expressed in the idea that in the extreme stages of the criminal contingent are "...criminals sporadic, casual, new to this business, on the one hand, and on the other - the chronic offenders, habitual, professional often. Against them pilot study measures of the state have gradually led to the thought of having to share and such a large difference between the persons to whom they should be applied" [1, p. 557]. Thus, gradually formed ideas are about the feasibility of an individual approach to the offender, taking into account social demographics and psychological characteristics of personality.
In the legal literature it is noted that probation was "...a form of realization of criminal responsibility, which is expressed to release the convict from the actual serving of the appointed punishment... under certain conditions..." [2, p. 40]. Noteworthy, that this measure of criminal and legal impact contains a kind of "field" for the implementation of the probation model. In this connection it is very important that the Institute of probation in the criminal legislation of Kazakhstan experienced significant changes. Currently implemented the proposal previously is formulated by scientists-criminalists on the establishment on the basis of combining a suspended sentence and probation a single legal institution [2, p. 14].
Probation if probation means that the offender is passed by the court under the supervision of the special public service and subjected to probation monitoring, due to the presentation of the conduct of the sentenced person certain legal requirements. In accordance with the Criminal Executive code of the Republic of Kazakhstan "Term of the probation control is calculated from the date of the statement of the person sentenced conditionally, on account of a probation officer" (part 1 of article 175 of the penal enforcement code of the Republic of Kazakhstan) . The duration of the probation control is installed on all the appointed term of deprivation of freedom (part 3 of article 63 of the criminal code of the Republic of Kazakhstan).
From the moment of registration of the probation service there is legal relationship between the guilty and the probation service of the criminal-Executive inspection. They are properly called relations of post-control, realized in the establishment of specific legal duties in respect of a conditionally convicted person.
In the General theory of state and law of obligations are defined as a measure of due behavior of the individual. In other words, is different requirements, having the legal basis, addressed to the person designed them to perform. Contained in part 2 of article 44 of the criminal code of the Republic of Kazakhstan of requirements on the offender is aimed at solving problems of post-control, creating the conditions most favorable for the correction of the guilty person. Deserving attention the fact, that the law directs the guilty person at the end of the probation is monitoring to prove its correction. It does not specify which facts indicate its correction. However, in part 2 of article 44 of the criminal code of the Republic of Kazakhstan there is a link to the behavior of the convicted person. Thus, it serves as a criterion for correction of the offender, allows judging the degree of correction. Thanks to the above legal requirements are provided by the individualization of the use probation. In part 2 of article 44 of the criminal code of the Republic of Kazakhstan provides the following types of requirements on the offender in respect t of whom applied for a conditional sentence:
1. The obligation doesn’t change the permanent place of residence, work or study without notifying the probation officer of the criminal-Executive inspection.
2. The obligation doesn’t visit certain places.
3. A duty to undergo treatment from alcoholism, drug addiction, venereal disease or HIV/AIDS.
4. The duty is to carry out financial support of the family.
In conclusion, the characteristics of the grounds of application of probation, it should be noted that the mode of testing, provided the conditional condemnation to persons with an unexpended or outstanding conviction, and again committed a crime, does not apply. However, such a strict rule, apparently, applies only to previously convict to imprisonment and those who were informed by the addressee probation. This conclusion is based on the indication of the Plenum of the Supreme Court of the Republic of Kazakhstan, according to which "... the court may not postpone the execution of a person previously suitable as to imprisonment, including imprisonment, probation, or suspended sentence, if the conviction is not removed and not extinguished in the order established by law" [3, p. 235]. And, although the above requirement applies to institutions of the criminal law of the Kazakh SSR, it has not lost its relevance and legal effect and today, which is undoubtedly true and quite logical.
In the system of prevention of crime probation is important. It is a form of socio-legal control that combines testing of offender surveillance and supervision over his behavior and disciplinary measures taken in respect of the convicted person.
1. Shumilov V. P. Conditional supervision of inmates in the main capitalist countries. - M.: Yurid. lit., 1971 – 198 p.
2. Muzinic A. K., Utkin V. A., Filimonov O. V. Probation and deferral of the application of the sentence. - Tomsk: Tomsk State University, 1990 – 176 p.
3. The Collection resolutions of Plenum of the Supreme Court of the Republic Of Kazakhstan. - Almaty: Sanat, 1997 - V. 2 – 311 p.
4. Agybaev A. .Calculus of punishment / justice. - 1999. - ¹ 3 - 4-8 p.
5. Penal code of the Republic of Kazakhstan from 5 July 2014 ¹. 234-V.
6. Criminal code of the Russian Federation from 13.06.1996 ¹ 63- (adopted by the state Dum of the Federal Assembly of the RF- 24.05.1996). «Meeting of the legislation of the Russian Federation», 17.06.1996, ¹ 25, article 2954.
7. Lomako V. A. Application of conditional condemnation. - Kharkov, 1976- 124 p.