Topical Issues of Criminal Law and Lawsuit in Kazakhstan: Assignment of Punishment under Criminal Law
Abstract
Enactment of the Criminal and Criminal Procedure Codes of Kazakhstan has settled many problems in the field of criminal sentence, though by no means not all of them. The problem of punishment assignment, meant to ensure the interests of the society, the state, and aggrieved person, as well as correctional rehabilitation of a person liable to punishment, remains one of the unsolved problems. Despite extensive research of the domestic and foreign scholars, the institution of criminal penalty remains one of the most problematic issues. The failure to resolve this problem brings great harm to all law enforcement activities, causes a negative reaction in society, and therefore deservedly enjoys the increased attention of criminologists and experts in criminal law and lawsuit. This problem is multifaceted since it applies not only to criminal law but to criminal lawsuit as well, and therefore, the author sees the aim of the present research in the search of options to improve the substantive and procedural provisions governing assignment of punishment. According to the author, the main factors causing this problem concern insufficient regulation of punishment assignment procedure in the legislation of Kazakhstan, the inaccuracy in construction of legal and technical aspects of dispositions and sanctions contained in certain provisions of the criminal code. In addition, according to the author, the courts are confronted with difficulties when assigning punishment due to misunderstanding of the sentencing principles and criteria. The work presents studies of regulatory enactments, opinions of scientists, legal practice, and foreign experience in the search for optimal punishment assignment model. One of the ways to solve this problem consists in more clear and detailed statutory regulation of the punishment assignment principles and criteria that would be able to significantly limit judicial discretion.
References
[1] Artemenko, N. 2010. Tekhnologii naznacheniya ugolovnogo nakazaniya: teoreticheskie i pravoprimenitel-nye problemy [Punishment assigning technology: Theoretical and law-enforcement issues]. Law of Crime, 3: 4.
[2] Baltabayev, K.Zh. 2012. Nakazanie i inye mery ugolovno-pravovogo vozdejstviya [Punishment and other measures of criminal and legal impact]. Proceedings of International conference ‘Topical issues of development of criminal legislation in the framework of the new draft of the Criminal Сode of Kazakhstan’, Almaty. Available at: http://lprc.kz/files/library/150/rus/%D0%A1%D0%B1%D0%BE%D1%80%D0%BD%D0%B8%D0%BA%2020.09.pdf (accessed January 18, 2017)
[3] Borchashvili, I.Sh., and Nurtayev, R.T. 2013. Aktual'nye problemy ugolovnoj otvetstvennosti i nakazaniya v sovremennom ugolovnom prave Respubliki Kazahstan [Topical issues of criminal responsibility and punishment in contemporary criminal law of Kazakhstan]. Lex Russica, 9: 1018-1029.
[4] Daff, A. 2003. Punishment, communication, and community. Oxford University Press, 9: 23.
[5] Dyadkin, D.S. 2009. Teoretiko-metodologicheskie osnovy naznacheniya ugolovnogo nakazaniya [Theoretical and methodological bases when assigning punishment]. Higher doctorate thesis. Academy of Management of the Ministry of Internal Affairs of Russia, Moscow, pp. 4.
[6] Grebenkin, F. 2006. Obshchestvennaya opasnost' prestupleniya i ee harakteristiki [Social danger of the crime and its characteristics]. Criminal Law, 1: 22.
[7] Kant, I. 1994. Metaphysics of morals. Сollected edition, 6(8): 366.
[8] Kruglikov, L.L. 2003. Sravnitel'nyj analiz instituta nakazaniya po ugolovnym kodeksam stran SNG i Pribaltiki [Comparative analyses of the punishment institution across criminal codes of CIS countries and the Baltic States]. Bulletin of Moscow University, 11(5): 70-80.
[9] Mikhal’, O. 2004. Sudejskoe usmotrenie pri naznachenii nakazaniya [Judicial discretion in assignment of punishment]. Criminal Law, 4: 36.
[10] Orlov, V.N. 2006. K voprosu o strukture lichnosti prestupnika: kriminologicheskij vzglyad [Revisiting the personality structure of the criminal: criminological view]. Russian Justice, 1: 28.
[11] Suleimanova, S.T. 2013. Naznachenie nakazaniya v ugolovnom prave Kanady [Assignment of punishment in criminal law of Canada]. Lex Russica, 10: 1134-1145.
[12] Tashchilin, M.T. 2014. Problemy ucheta sudom obshchih nachal naznacheniya nakazaniya [Issues of court accounting for general principles of assigning punishment]. Russian Justice, 2: 29-33.
[13] Ugolovno-ispolnitel'nyj kodeks Respubliki Kazahstan [Correctional Code of Kazakhstan of July 5, 2014 No. 234-IV (with changes and additions as of 30.12.2016)]. Available at: http://online.zakon.kz (accessed January 18, 2017)
[14] Ugolovno-processual'nyj kodeks Respubliki Kazahstan [Criminal Procedure Code of Kazakhstan of July 2014 No. 231-V (with changes and additions as of 26.07.2016]. Available at: http://online.zakon.kz/Document/?doc_id=31575852 (accessed January 18, 2017)
[15] Ugolovnyj kodeks Respubliki Kazahstan [The Criminal Code of Kazakhstan of July 3, 2014 No. 226-IV (with changes and additions as of 26.07.2016)]. Available at: http://online.zakon.kz. (accessed January 18, 2017)
[16] Yurchenko, R.N. 2012. Voprosy opredeleniya vidov i razmerov ugolovnyh nakazanij v svete Koncepcii pravovoj politiki Respubliki Kazahstan [The determination of the types and sizes of criminal sanctions in the light of the Concept of Legal Policy of Kazakhstan]. Proceedings of International conference ‘Topical issues of development of criminal legislation in the framework of the new draft of the Criminal Code of Kazakhstan’, Almaty. Available at: http://lprc.kz/files/library/150/rus/%D0%A1%D0%B1%D0%BE%D1%80%D0%BD%D0%B8%D0%BA%2020. 09.pdf (accessed January 18, 2017)
[17] Zimring, F.E. 2010. The scale of imprisonment in the United States: Twentieth century patterns and twenty-first century prospects. Journal of Criminal Law & Criminology, 100(3): 1225-1246.
The Copyright Transfer Form to ASERS Publishing (The Publisher)
This form refers to the manuscript, which an author(s) was accepted for publication and was signed by all the authors.
The undersigned Author(s) of the above-mentioned Paper here transfer any and all copyright-rights in and to The Paper to The Publisher. The Author(s) warrants that The Paper is based on their original work and that the undersigned has the power and authority to make and execute this assignment. It is the author's responsibility to obtain written permission to quote material that has been previously published in any form. The Publisher recognizes the retained rights noted below and grants to the above authors and employers for whom the work performed royalty-free permission to reuse their materials below. Authors may reuse all or portions of the above Paper in other works, excepting the publication of the paper in the same form. Authors may reproduce or authorize others to reproduce the above Paper for the Author's personal use or for internal company use, provided that the source and The Publisher copyright notice are mentioned, that the copies are not used in any way that implies The Publisher endorsement of a product or service of an employer, and that the copies are not offered for sale as such. Authors are permitted to grant third party requests for reprinting, republishing or other types of reuse. The Authors may make limited distribution of all or portions of the above Paper prior to publication if they inform The Publisher of the nature and extent of such limited distribution prior there to. Authors retain all proprietary rights in any process, procedure, or article of manufacture described in The Paper. This agreement becomes null and void if and only if the above paper is not accepted and published by The Publisher, or is with drawn by the author(s) before acceptance by the Publisher.