The Republic of Kazakhstan, joining the international standards for the protection of human rights, is taking active steps to reduce the level of offenses in the family and household sphere.
Particular attention is paid to finding the optimal balance between prevention and adequate response to illegal events. At the same time, in all cases, the possibility of preserving the family, strengthening family ties and values is taken into account. It should be noted that the optimal balance has not been achieved in any country.
In Kazakhstan society, the scientific controversy on the tightening of responsibility continues to this day.
According to the instructions of the Presidential Administration and the Security Council of the Republic of Kazakhstan, a scientific and practical study on the effectiveness of measures taken in the field of countering domestic violence was conducted on the basis of the Academy of Law Enforcement Agencies at the Prosecutor General’s Office.
Well-known scientists and practitioners-lawyers of Kazakhstan, active citizens (R. Oshakbayev, S. Akylbay, S. Tursynbekova, L. Arenova, N. Ergalieva, Zh. Ilyicheva, D. Satzhan, Sh. Ali, Zh. Akhmetov and many others), who addressed the Head of State about the need to strengthen responsibility for domestic violence, who became part of the relevant interdepartmental working group, as well as leading experts from Russia, Ukraine, Uzbekistan, were involved in the work.
The study examined international experience, including the practice of achieving human rights indicators approved by the UN in terms of preventing violence against women.
So, on June 4 this year, an international scientific and practical conference was held at the Academy, on September 17 – a meeting of the Interdepartmental Working Group under the Prosecutor General’s Office on monitoring and generalizing the practice of applying the Criminal Code and the CPC of the Republic of Kazakhstan on this topic. The results of the study were discussed at the operational meetings of the Security Council and the Presidential Administration (October 1 and 8 this year), where they received a generally positive assessment.
The authors came to the main conclusion that at the present stage there is no need to criminalize administrative offenses related to causing minor harm to health and beatings (Articles 73-1, 73-2 of the Administrative Code of the Republic of Kazakhstan).
First. The theory of criminal law and criminal policy identifies a number of mandatory criteria common to all acts and conditions for their criminalization, which are its fundamental principles.
When evaluating the proposed innovations, it is important to emphasize that criminalization should not be carried out if effective counteraction is possible outside of criminal legal instruments.
In addition, the expected positive results of criminalization should exceed its negative consequences.
The historical experience of Kazakhstan, on the example of repeated transfer of beatings and intentional infliction of minor harm to health from the Criminal Code to the Administrative Code, has shown high efficiency of detection and legal realization of these types of offenses within the framework of administrative responsibility.
Thus, the changes associated with the transfer of these administrative violations to the category of criminal, negatively affected the state of domestic crime in the country.
Compared to the administrative, the criminal process of bringing the offender to justice was more cumbersome and inefficient.
For example, if before 2015 about 3.5-4 thousand family rowdies were brought to administrative responsibility for causing minor harm to health, then with the adoption of the new Criminal Code, the figure decreased by 6 times – to 575 – 600.
Thus, it can be assumed that about 3 thousand offenders annually escaped from responsibility.
In the future, since 2017, after the transfer of these offenses from the Criminal Code to the Administrative Code, their registration has increased more than 10 times.
For reference: in 2017 – 7,578, in 2018 – 15,548, in 2019 – 23,356, in 2020 – 22,533, in 6 months of 2021 – 10,857 acts.
Second. The analysis showed that family and domestic offenses are committed not because of the loyalty of administrative legislation, but in many cases under the influence of other factors and circumstances (the degree of upbringing, the level of relationships and mutual respect, spontaneous quarrels against the background of mutual insults, the establishment of adultery, etc.).
Other reasons are unfavorable socio-economic factors (unemployment, low income, lack of housing, loans, etc.).
Therefore, for example, without raising the level of legal culture and improving socio-economic conditions, it is difficult to solve problems in this area. In addition, criminalization is associated with the risks of distorting the real state of domestic violence and will certainly entail the latency of offenses.
For example, a person has committed a crime – he can be convicted, and this is not in the interests of the victims themselves, since the parents’ criminal record narrows the horizons of the children’s future and often the victims understand this perfectly well.
The third. During the period of being in the Criminal Code for causing minor injuries and beatings (Articles 108, 109), liability was provided in the form of arrest (for minor injuries – up to 60 days, for beatings – up to 45), a fine and correctional labor.
At the same time, arrest, as the main punishment, has not been applied and is not being applied to this day due to the absence of arrest houses, the fine puts a burden on the family, and correctional labor is often impossible to apply due to the lack of a permanent place of work for the perpetrators.
The penalties provided for by administrative legislation (administrative arrest, fine) and individual preventive measures (preventive conversation, warning, protective order, special requirements for the behavior of the guilty person, administrative detention, administrative penalty, deprivation and restriction of parental rights, etc.) together have great preventive potential.
Fourth. The simplification of the administrative process and its efficiency create real conditions for ensuring the inevitability of punishment and increasing the responsibility of the offender.
As a result, it was proposed to tighten the existing administrative sanctions in the form of arrest, to introduce administrative responsibility for repeated violation of the requirements of the protective order. We consider such a step to be more expedient than another transfer of norms from administrative offenses to the category of criminal offenses.
Also, given the high risk of recidivism after conciliation procedures, it is proposed to introduce special conditions for offenders in the field of family and domestic relations. In particular, after the termination of the reconciliation proceedings, the court could establish obligations to the guilty person so that he voluntarily underwent a course of psychocorrective care, received medical and narcological assistance and took measures for employment.
The study showed the importance of developing preventive and preventive institutions, making extensive use of the capabilities of specialized state bodies in providing various social and legal assistance, mechanisms for the impact of pre-trial probation tools.
It is important to establish practical interaction of authorized bodies in the implementation of tasks on countering domestic violence. To this end, it is necessary to modernize certain norms of the Administrative Code for the effective implementation of programs of psychocorrective behavior.
Tysip, Leading Researcher
of ISRI of Academy of Law Enforcement
Agencies under the Prosecutor General’s Office
Kuatova, Associate Professor of the Department
of General Legal Disciplines of Institute of Postgraduate
Education of Academy of Law Enforcement Agencies
under the Prosecutor General’s Office
- The criminalized act must be socially dangerous and have a fairly wide prevalence.
- Criminalization should correspond to the dialectic of the development of criminal law phenomena.
- The expected positive results of criminalization should exceed its negative consequences.
- Criminalization of an act should not contradict the norms of international law.
- Criminalization should not be carried out if counteraction is possible outside of criminal legal instruments.