“fight” or “mechanism to counter”
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- Государство и право. Юридические науки
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«Fight» or «mechanism to counter»
In criminal proceedings in France during the preliminary investigation, the investigating judge is involved, which at the end of investigative inquiry conducted under the supervision of the prosecutor, initiate an investigation.
In Germany under investigation participates coroner that the investigation does not hold, and deal with complaints about the actions of the inquiry, authorizes actions restricting constitutional rights and freedoms and to legalize the evidence.
The appearance of the procedural figure of the investigating judge with the relevant procedural powers to exercise control over the legality of pre-trial creates real opportunities parties to compete on equal terms. So far, the district court judges had certain powers, but real control over the investigation had not. How figuratively put D. K. Kanafin — «judges have become Keeper of the Seals», their activities snaps authorization of arrest . Moreover, if all leave in the previous form, then there would be a lot of problems related to ensuring the independence, impartiality and fairness of the judicial activities in general. For example, long remained an open question about the participation of a judge authorizing the arrest, in the further consideration of the criminal case on the merits. Legislator in circumstances eliminating the judge from the case, did not provide for such a case. Although the court giving consent to the arrest of the accused, should not
participate in the subsequent stages of the criminal process. The name «investigating judge» already means that his powers are terminated with the transfer case to the court in a criminal case on the merits.
The new Code of Criminal Procedure has already provided disqualification of a judge, if he was involved in the case as investigating judge, and also deal with complaints and protests against the decision of the investigating judge.
One of the international experts G. Zh. Suleimenova noted that «It should be recognized that in general the idea of creating such a subject process deserves unconditional support, since it is a first step towards institutionalizing the Institute of judicial review. This step is determined by the official responsible for the administration of this function are specified not only by his powers, but also the procedure of interaction with him the other participants in the process. Occurs even if preliminary, are not yet clear, but the separation of the functions of justice of the function of procedural control of law and respect for human rights» .
However, the introduction of the institution of the investigating judge continues to raise many questions. For example, what about the prosecutor’s supervision, in which the court should be the investigating judge, logistics, distribution and other loads.
1. Kanafin D. K. Sovershenstvovanie pravovogo statusa advokata v svete razrabotki novogo ugolovno-protsessual'nogo kodeksa Respubliki Kazakhstan//Yurist. — 2012. — № 12. — S. 47−55.
2. Suleimenova G. Zh. Zaklyuchenie nauchno-pravovoi ekspertizy Kontseptsii proekta Ugolovno-protsessual'nogo kodeksa Respubliki Kazakhstan//Yurist. — 2012. — № 12.
Dzhansarayeva Rima Yerenatovna, al-Farabi Kazakh National University, Head, Chair of Criminal Law, Criminal Process and Criminalistics, Doctor of Law, Professor E-mail: jansarayeva@mail. ru
«Fight» or «mechanism to counter»
Abstract: The article analyzes the relationship between the concepts «fight against crime» and «mechanisms for combating crime». The practice of the fight against crime and its scientific basis suggest the appropriateness of using along with the term «crime control» and the phrase «a mechanism to crime», which indicates the possibility of using as to affect the crime of different tools and techniques and their relationship together. In addition, it emphasizes the sequential progress of their application in order, it is adequate as a crime as a whole and its individual species.
Keywords: criminology, crime, fight against crime, mechanism to counter crime.
In criminology uses various terms to describe the activities of the state aimed at neutralizing such negative sociolegal phenomenon as crime. The most common of these is the term «struggle». In etymological terms it means the desire of certain persons in conflict with the opposing party, destroy it and defeat. In this case, this kind of process involves overcoming numerous obstacles, the resistance of the opposing side, which is actively pursuing its interests. This gives the
fight shade of permanent conflict that has lasted until the moment when one of the parties to the maximum is not winning, but at a minimum — establishes control over the stranded weaker opponent.
Supporters of the projection of the term «struggle» believe that, firstly, the warring parties are the state, relies on the assistance of various kinds of non-state entities and individuals, as well as representatives of the criminal environment,
Section 12. Criminal law and criminology
acting both independently and in the form of complicity [1, 14−15]. In this respect, it is interesting position, including criminal groups in the form of a cohesive organized criminal groups of people and political persuasion, created for committing grave or especially grave crimes, the political system of the state, which stresses the undoubtedly high level of social danger of this component of the criminal environment, really opposing state [2, 426−431].
Secondly, the fight against crime is realized by the means and methods of influence on it. They take the form of various measures. Therefore, the latter differentiate the economic, political, legal, psychological, organizational, technical, and others [3, 50−51].
Third, it is determined that the totality of the above measures is intended to provide a solution specific range of problems, leading eventually to the strategic goal: to prevent social disruption due to the establishment of control crime as a socio-legal phenomenon [4, 102−116].
In this case, you must make a reservation, that the objectives of the impact of crime on the individual to understand the various criminologists. Thus, it is possible to share the view of Inshakov S. M., who believes that the purpose of the impact on crime is to overcome its threshold parameters [5, 90−91]. When this really solves the problem, according to this scientist, is to overcome the first threshold in the form of ridding society of a crisis state crime, leading to a crisis, the shift state leaders, the revolutionary upheavals and the loss of national independence.
In the above postulates, detailing such a thing as the fight against crime, it applies to the scientific problem it is important to formulate the concept of the fight against crime.
However, it seems appropriate to point out the fact that a number of scientists subjected to critical analysis and evaluation of the negative aspects of the paradigm of «fighting crime& quot-, which, in their opinion, puts to the state, society, criminal justice agencies insipid purpose, for example, holds enforcer hostage criminal statistics and brings all his work to the infamous «struggle» for performance and does not require a thoughtful and in-depth analysis of the crime situation [6, 17].
In addition, target setting to fight the war against crime contains a potential danger of a return to the already traversed path punitive criminal policy.
In this regard it should be noted that the term «struggle» in essence reflects the conflict between the warring parties. On this basis, it is possible to allocate certain aspects.
Firstly, it is the practical side, which is connected with the activities of the special terms of criminal justice, authorized by the state to identify, disclose, to prevent and suppress unlawful acts. Practical implementation of their powers — the inevitable object of criticism, because their activities related to the use of coercive measures. Impact and direction of the state, including legal, policy in this area of social relations based on the specific realities. Nevertheless, the existence of a community crime inevitably requires the use of means and methods to influence it.
Second, the task of legal science in any period of time is to generalize the practice of law enforcement activities and to formulate in this regard theoretical and practical recommendations. If we talk about the outer side of the problem, it is quite acceptable to use along with the term «crime control» and the phrase «a mechanism to crime» This is possible because as the term indicates the possibility of using to influence crime various means and methods, as well as their relationship. In addition, it emphasizes and consistent course of their implementation in a manner consistent with standards possible as crime in general and its individual species.
Based on the meaning of the term «mechanism» in the definition of «mechanism to counter crime» seems correct to talk about unity naturally arranged and interconnected elements defining the procedures of the state and non-state actors to counter such negative socio-legal phenomena as crime.
Analysis of the terms used in the theory of criminology to indicate activity of the state aimed at neutralizing the crime, the study of the term «crime control» in the context of his positive perception and critical analysis by criminologists, lead to the conclusion that the «struggle» for essentially reflects the conflict between the warring parties, which should highlight the specific aspects.
First of all, it is a practical side in the form of a special range of activities of criminal justice officials, authorized by the state to identify, disclose, to prevent and suppress unlawful acts.
Second, the theoretical aspect, which consists in the fact that generalize the practice of law enforcement agencies and to formulate theoretical and practical recommendations.
The practice of the fight against crime and its scientific basis suggest the appropriateness of using along with the term «crime control» and the phrase «a «mechanism to counter crime»», which indicates the possibility of using as to affect the crime of different tools and techniques and their relationship together. In addition, it emphasizes the sequential progress of their application in order, it is adequate as a crime as a whole and its individual species.
With regard to the mechanisms to counter specific types of crimes that would mean that its components will be the appropriate means and methods that are implemented in the framework ofwell-defined law enforcement functions: operational and investigative activities, inquiry, preliminary investigation of the compliance with the criminal law.
This mechanism is applied to counter, for example, crimes related to trafficking in narcotic drugs and psychotropic substances will include, first, a series of functions of criminal justice- Second, a set of law enforcement activities to ensure control over the legal trafficking in narcotic drugs and psychotropic substances, and pre-trial proceedings in cases of crimes and offenses, excited by the results of this monitoring, the presence to the legitimate reasons and grounds and, thirdly, a group of measures of a preventive nature.
Model of the mechanism will function effectively conditional on the implementation arrangements that determine
«Fight» or «mechanism to counter»
the subjects of these functions, as well as legal measures, providing them the appropriate authority. With the help of organizational and legal measures under review mechanism is primarily formed, and then operates. In the presence of certain conditions to the mechanisms for combating crime upgraded.
Considering the nation-wide measures to fight crime and their relationship with the mechanism of combating crime, should recognize their basic nature of the functioning of the mechanism as the nation-wide reaction to crime in general. This is achieved by the proper implementation of its own political, economic and social measures to prevent the crisis state of society, as well as by deliberate action on the organizational and legal measures by which mechanism is formed by combating crime.
In general, the mechanisms for combating crime should be understood as a set of interrelated functions of law enforcement focus, the contents of which are the appropriate means and methods of influence on these social-negative phenomenon. The subjects of these functions are defined in the legal order. As a result, it creates and updates a model of an appropriate mechanism, the effectiveness of the work depends on the measures that are national in nature.
Mechanisms for combating crime are formed by carrying out organizational measures related to the definition, modernization or the creation of new government agencies, designed to resist crime. At the same time of special importance to determine their goals and objectives, and then the corresponding system and structural devices, form of organization, interaction with other law enforcement agencies and other entities whose activities are focused on the implementation of anti-crime activities.
No less important for optimal combating crime legal action, creating a legitimate basis to combat crime. These lead to the effective legislation in the sphere of combating crime.
For example, criminal law and criminal procedure law is considered only in relation to the problem of combating crime, representing only one of the tools of resistance. This is the mechanism of differentiation of social conditions, relationships, activities into two classes: the permissible without requiring exposure of the state, and those who exercise of this right are defined as unacceptable as requiring coercive state action.
In fact, the role of the criminal law is not limited to only the tasks to crime. It has a significant influence on the processes that underlie outside the criminal sphere. Solving optimization problems of legal relations shows that the right serves as a link between the criminal and the other processes in the society.
On the one hand, the impact on the criminal process modifies the system of social relations. Change and evaluation activities, change of activity, behavior change and social processes. On the other hand, the very legal space is determined by the states and processes in a variety of public relations. Changes in social relations outside the crime and causing changes in the field, makes change, amend the system of combating crime.
Today, it is clear that we need not fight against crime, and such an organization of social relations, which will optimize the crime, to put it in an environment in which the costs of combating crime and loss in the amount of crime is minimal.
Organizational and legal measures create the preconditions for direct law enforcement agencies to detect, detection and investigation, prevention and suppression of unlawful acts. There is an important application time because due to the criminal law, criminal procedure, search operations is the process of implementation of the criminal policy to combat crime.
Organizational measures aimed at creating a mechanism for combating crime in criminology individual scientists associated primarily with the structural maintenance of combating crime. Others view organizational measures to combat crime in a broader sense, believing that they are intended to contribute to neutralize or minimize the criminogenic effects of unprofessional management and organizational activities. In particular, according to Burlakov V. N., among organizational will include measures to improve the management of migration processes of the population, to test the efficient and financially secure mechanism for social adaptation of persons released from prison, etc. [6, 183].
There is a point of view that organizational measures to combat crime are criminological forecasting and programming of the fight against crime, ensuring interaction between law enforcement agencies, increase management efficiency in the fight against crime, etc. [7, 32].
It seems appropriate to share the view of Borodin S. V. and other criminologists, in particular, of Malkov V. D., Maslov S., Pleshakov V. A., Tokarev A. F., who believe that the elements of the organizational framework for the prevention of crimes are appropriate functional and structural information and analytical support for preventive activities of law enforcement body, criminological forecasting, planning and programming, as well as the organization of internal and external cooperation in the field of preventive work [8, 95−187].
This indicates that the responses to crime and manifestations of social pathology, is based on a system of interrelated organizational elements. In this case, the organization may have to crime and national and regional, as well as develop appropriate, in the activities of state bodies and public organizations.
1. Borodin S. V. Fighting crime: a theoretical model of the integrated program. — M.: Nauka. — 1990. — 272 p.
2. Syryh V M. Theory of State and Law: Textbook. — M.: Legal House «Yustitsin-forms& quot- - 2001. — 591 p.
3. Criminology. — M.: Publishing Group INFRA. -M. — NORMA. — 1997. — 512 p.
4. Inshakov S. M. International criminology. — M.: Publishing Group INFRA. -M. — NORMA. — 1997. — 374 p.
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5. Inshakov S. M. Criminology: Textbook. — M.: Jurisprudence. — 2000. — 432 p.
6. Voshodov S. S. Criminal policy of modern Russia in the conditions of the constitutional and legal reform: Author. diss. … Dr. jurid. sciences. — M.: Academy of Management MVD of Russia. — 1999.
7. Burlakov V. N. Crime prevention//Criminology: Textbook for universities. — SPb.: Saint Petersburg State University. -St. Petersburg, — 2003. — 432 p.
8. Maksimov S. V., Mackiewicz I. M., Ovchinsky V. S., Eminov V. E. Criminology. — Publishing Group INFRA. -M. — NORMA. -1999. — 160 p.
Duzbayeva Saltanat Bolatbekovna, Kazakh National University named after al-Farabi, master of law, the Faculty of Law Alimzhanova Malika, Kazakh National University named after al-Farabi, student, the Faculty of Law Bayshuakov Aydos, Kazakh National University named after al-Farabi, undergraduate, the Faculty of Law E-mail: B_ali_77@mail. ru
Judges — carriers of the judiciary, legal status and legal regulation
Abstract: The article clearly defined problems in the system of law enforcement bodies of the Republic of Kazakhstan. One of the branches of government is the court, designed to administer justice. Justice in the Republic of Kazakhstan shall be exercised only by the court for the purpose of considering and resolving various social conflicts, which are based on actual and alleged violation of the rights of subj ects. Courts hear civil, criminal and administrative cases in the procedural forms prescribed by law.
Keywords: the judiciary, the judge’s independence, the legal status of the law.
«The judge is independent, but its independence is clearly regulated by law, t. e. «limited& quot-, outlined the legislative, normative legal acts, which the judge strictly subordinate& quot-
The Constitution of the Republic of Kazakhstan in 1995 proclaimed the separation of the judiciary from the executive and legislative authorities, highlighting it as an independent branch of government. Purpose of the judiciary is to implement the protection of the rights, freedoms and legitimate interests of citizens, state bodies, organizations, enforcement of the Constitution of the Republic of Kazakhstan, laws and other normative legal acts, international treaties of the Republic. Thus plays the role of the judiciary in the first place, the arbitrator to resolve all conflicts and disputes about the law, and, secondly, — body providing performance and adherence to the rule of law in the state.
The judge is a person appointed or elected in accordance with the law as a judge working in the appropriate court and exercise its powers in a professional manner.
The legal status of judges includes independence and tenure of judges, as well as its integrity. Independence means that judges are independent and subject only to the Constitution. Nobody has the right to interfere in the administration of justice and to exert any influence on the judge. The judge is not obliged to give any explanations concerning the discussed or put in the production of cases (Art. 25 of
the Constitutional Law on the Judicial System and Status ofJudges).
The legal status of judges is governed by the legislation on the judiciary in the Republic of Kazakhstan, which is a system of normative legal acts determining the order of formation of vessels, the principles of their organization and activities, the judicial system, the composition, structure, competence of each court level, and the legal status of judges.
The main documents regulating the activities of the courts and the status of judges is the Constitution of the Republic of Kazakhstan and Constitutional Law № 132-II dated December 25, 2000 «On the Judicial System and Status ofJudges of the Republic of Kazakhstan& quot-
In accordance with Article 77, paragraph 1, of the Constitution of the Republic of Kazakhstan and Art. 25 of the Constitutional Law on the Judiciary judge with justice shall be independent and subject only to the Constitution and the law. The judge in the exercise of the powers vested in them by law are not subject to any authorities and officials of the executive and legislative branches of government and accountable to a higher tribunal.
«The judge is independent, but its independence is clearly regulated by law, ie. E. & quot-Limited"-, outlined the legislative, regulatory legal acts, which the judge strictly subordinate. "-