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) [5].
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.
References:
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.