Non-compliance of Kazakhstan`s criminal law with international anti-corruption standarts

According to Chene, amnesty weakens law enforcement's work in isolating offenders from society, undermining the rule of law by allowing criminals to avoid punishment.⁴⁶ As a result, Amnesty damages the state's credibility by committing to a resilient fight against corrupt individuals, which `ultimately undermines the legitimacy of the regime and the rule of law'.⁴⁷

Because Kazakhstani criminal law is preoccupied with avoiding criminal responsibility,⁴⁸ amnesty for corrupt officials requires special consideration. Amnesty is viewed as a humanitarian act by the state toward criminals.⁴⁹ This is how the vast majority of Kazakhstani scientists describe it.⁵⁰ Auzhanov and Biekenov consider amnesty as a necessary compensation and insurance against mistakes, as well as deliberate falsification of the investigation and accusatory bias of the courts.⁵¹ Nonetheless, some Kazakhstani researchers have criticised Amnesty for failing to achieve key standards of reasoning, reasonableness, and fairness. Despite Amnesty's overwhelming support, this critique is relatively rare, but it is a powerful remark.

Thus, for the first time publicly, scientists from the Republican Institute of Legislation discussed the negative role of amnesty in fighting criminal offences. They argue that it violates the principle of the inevitability of responsibility and punishment, creating an exception among individuals committing criminal offences in the hope that the state will forgive them through amnesty, allowing them to avoid responsibility.⁵² In this regard, these scientists have discussed the omission of amnesty from the Criminal Code as a sort of exemption from criminal responsibility. A detailed explanation is required to substantiate this opinion if one concurs with this perspective.

Amnesty, in reality, undermines several of the foundations of criminal law and presents barriers to attaining the goals of punishment entrenched in criminal law. The termination of the initiated criminal case in connection with the adoption of the amnesty law leaves the crime unpunished, violates the presumption of innocence since the termination of the criminal case in connection with the issuance of the amnesty act is a non-rehabilitating ground, and makes it difficult to achieve the purposes of criminal proceedings by complicating the protection of the rights and legitimate interests of crime victims. Amnesty, among other aspects, opposes the values of legality, equality of all citizens before the law, and, paradoxical as it may sound, humanism. According to the legality principle, an act's criminality, as well as its punishability and other criminal legal repercussions, should be determined solely by criminal law. Article 1 of the Republic of Kazakhstan's Criminal Code specifies that criminal legislation consists of the Criminal Code of the Republic of Kazakhstan, and the law on amnesty is not included in its composition. Still, it affects criminal legal relations' emergence, change, and termination. It turns out that amnesty law is a "unique" normative-legal act, equating to existing normative-legal acts of criminal legislation that are contrary to criminal law norms. Thus, in addition to the mechanism of criminal law regulation of exemption from criminal liability provided for in the criminal law, amnesty is also included, resulting in criminal legal repercussions that circumvent the criminal law, directly contradicting the principle of legality.

Similarly, Zhanuzakova emphasises the contradiction of the conducted amnesties with the criteria of the criminal law, arguing that the list of crimes to which the amnesty was not extended is disproportionately long compared to the limited list of crimes established by the criminal law. Leila Telmanovna Zhanuzakova, `On Some Issues of Application of Amnesty in the Republic of Kazakhstan' (2022) 17(1) Criminal Executive Law 61, doi:10.33463/2687-122X.2022.17(1-4).1.058-063. This is quite correct. Article 78 of the Criminal Code of the Republic of Kazakhstan contains a small list of crimes for the commission of which convicted persons are not covered by the amnesty act - these are persons who have committed crimes against sexual inviolability of minors, except in the case of committing such a crime by a minor against a minor aged fourteen to eighteen years, terrorist crimes, extremist crimes, torture, as well as persons whose punishment is imposed in case of recidivism of crimes or dangerous recidivism of crimes.

Despite this restricted list, each amnesty in Kazakhstan did not extend to individuals convicted of a considerably broader range of offences. Clearly, there is some contradiction here. Moreover, even though amnesty was limited to a few crimes, it was not extended to numerous crimes of medium or grave gravity, even in sentence reduction. ibid. The excessive and unjustifiable development of the list of activities for which amnesty is not given to convicted persons in terms of reduced terms or amounts of punishment confirms a violation of both legality and citizens' equality before the law. As a result, the principle of equality of citizens before the law, which establishes that persons who have committed crimes are equal before the law and are subject to criminal liability regardless of circumstances, is the next principle of criminal legislation that the amnesty law contradicts.

While the amnesty law aims to free an indefinite number of individuals from criminal liability, it identifies categories of individuals eligible for amnesty, such as women over 50, men over 60, minors, and others. It is assumed that if criminals are liable to criminal liability on equal grounds regardless of circumstances, they should also be discharged from criminal liability on equal grounds irrespective of circumstances. In other words, the amnesty law should state that first-time offenders of minor offences should be released, aligning with equality before the law for all citizens.

Including criteria connected to the perpetrator's personality, such as age, in the amnesty law is an expression of inequality compared to people of different ages who have committed identical crimes. The amnesty law should refrain from including elements that undermine citizens' equality before the law and should only include indicators of crimes unrelated to the perpetrator's personality. Furthermore, the breach of the concept of equality of citizens before the law is built in the very foundation of the amnesty law, as it only applies to offences committed prior to its enactment.

The principle of humanism that guides the state when granting amnesty takes a different form and has nothing to do with ensuring a person's safety within the framework of criminal proceedings or guaranteeing them protection from physical suffering or the humiliation of human dignity in the application of punishment and other criminal-legal measures. That is why, in the current situation, when corruption crime in Kazakhstan persists, it is prudent not to grant amnesty to corrupt officials and apply incentive norms enshrined in criminal law. Amnesty should be restricted for individuals whose sentences have been taken into legal force; such people should not be wholly excused from serving their terms.

Furthermore, following the abolition of parole for grave and especially grave corruption offences, a prohibition on the possibility of commuting the sentence to a milder one for the perpetrators of corruption offences should be introduced to ensure consistency of the norms and achieve logical consistency of the norms of criminal law to strengthen the fight against corruption offences. Because the termination of parole for severe, particularly severe corruption offences would not worsen the condition of convicted corrupt individuals, the sentence might still be commuted. The imposition of this prohibition is consistent with the unyielding fight against corruption offences.

CONCLUSIONS

Corruption is one of the most hazardous social phenomena that weakens national security by undermining the authority of public power and the rule of law, ridiculing and sometimes neglecting human rights in the state. Kazakhstan's criminal code is being amended and supplemented in light of the implementation of international anti-corruption norms, as well as the positive experiences of other nations.

Examining the standards of the criminal laws of Ukraine, the Czech Republic, Poland, Latvia, and Lithuania reveals that each state seeks to strengthen its norms while keeping international requirements in mind. Many criminal law norms in Kazakhstan have already been corrected to meet international requirements. Still, legal entity liability and the offer/promise of a bribe and consent to its acceptance have yet to be criminalised. To avoid the formalistic introduction of new legal structures into criminal law, they should be preceded by extensive research into their consistency with previous criminal law norms. There is still no enshrinement in the criminal law of a broad understanding of bribery, which includes material and non-material benefits. Eliminating the existing inconsistencies in criminal law and introducing these norms into it will undoubtedly strengthen the potential of criminal law norms to eradicate corruption in Kazakhstan.

REFERENCES

1. Abilkairov MR, Kamnazarov MM and Rakhmetov SM, `Corruption as a Socially Negative Phenomenon: Research Materials on Combating Corruption' (Supreme Court of the Republic of Kazakhstan, 22 April 2015) <http://sud.gov.kz/rus/content/ korrupciya-kak-socialno-negativnoe-yavlenie/> accessed 28 September 2023.

2. Ardigo IA, `Judicial Clemency and Corruption' (Transparency International, 20 November 2017) <https://knowledgehub.transparency.org/helpdesk/judicialclemency-and-corruption> accessed 8 October 2023.

3. Auzhanov R and Biekenov NA, `To the Question of Necessity of Amnisty in Kazakhstan' (Modern Trends in the Development of Legal Science: International scientific-theoretical conf of young scientists, Karaganda Law Academy B Beisenov of Ministry of Internal Affairs, 2020) 19.

4. Bersugurova LS and Sharipova AB, `Humanism and Principles of Criminal Legislation of the Republic of Kazakhstan' Mysl (Almaty, 17 November 2022) <https://mysl.kazgazeta.kz/news/15861> accessed 10 October 2023.

5. Chene M, `The use of Amnesties for Corruption Offences: U4 Helpdesk Answer 2019' (U4 Anti-Corruption Resource Centre Michelsen Institute, 7 June 2019) <https://www.u4.no/publications/the-use-of-amnesties-for-corruption-offences.pdf> accessed 8 October 2023.

6. Dornbierer A, Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth (Basel Institute on Governance 2021) doi:10.2307/j.ctv2c74pzx.

7. Dulatbekov NO, `Principle of Humanism' Kazakhstanskaya Pravda (Astana, 20 December 2016) <https://kazpravda.kz/n/printsip-gumanizma/> accessed 8 October 2023.

8. Dyusengulova R, `About 100 billion dollars withdrawn from Kazakhstan - Minister Kuantyrov' (Tengri News, 14 April 2022) <https://tengrinews.kz/kazakhstan_news/okolo100-milliardov-dollarov-vyiveli-kazahstana-ministr-466449> accessed 28 September 2023.

9. Kabalskyi R and Shevchyk O, `Does Normativity Contribute to the Effective Protection of Rights? Reflections on the Concept of Normativity in the Modern Ukrainian Doctrine of Law' (2021) 4(3) Access to Justice in Eastern Europe 155, doi:10.33327/AJEE-18-4.3-n000081.

10. Kuibida R, `Constitutional Court Strikes the Anti-Corruption System in Ukraine' (2020) 3(4) Access to Justice in Eastern Europe 283, doi:10.33327/AJEE-18-3.4n000040.

11. Lagutin RA, `Science-Based Approach in Establishing Sanctions for the Commission of Legalisation (Laundering) of Proceeds of Crime: Gary S Becker's “Crime Formula”' (Development of Modern Legal Science: Theory and Practice: International scientificpractical conference, Nur-Sultan, 2020) 302.

12. Letkova A and Schneiderova A, `The Value of Justice in Czechoslovak Criminal Law Norms in the 20th Century' 2021 4(2) Access to Justice in Eastern Europe 86, doi:10.33327/AJEE-18-4.2-a000062.

13. Lopez-Claros A, Dahl AL and Groff M, `Corruption as a Destroyer of Prosperity and the Need for International Enforcement' in A Lopez-Claros, AL Dahl and M Groff, Global Governance and the Emergence of Global Institutions for the 21st Century (CUP 2020) 391, doi:10.1017/9781108569293.

14. Muzila L and others, On the Take: Criminalizing Illicit Enrichment to Fight Corruption (Stolen Asset Recovery (StAR), World Bank 2012) doi:10.1596/978-0-8213-9454-0.

15. Mykhailenko D, `Obstacles to the Implementation of the Norm on Illicit Enrichment in National Law' (2015) 4(69) Law and State 55.

16. Mykhajlenko D, `Does the Norm on Illicit Enrichment Limit Human Rights in Ukraine?' (2016) 12/3 Legea §i Viata 52.

17. Nurtayev RT, `Current Problems of Compliance with the Principles of Criminal Law' (2017) 1(46) Bulletin of the Institute of Legislation of the Republic of Kazakhstan 128.

18. Rakhmetov SM, `Criminal Legislation of our Country Needs Optimization' (Modernization of Criminal, Criminal Procedural and Penal Enforcement Legislation in the Conditions of Digital Transformation of Society: International round table, Kosshi, Academy of law enforcement agencies under the General Prosecutor's Office of the Republic of Kazakhstan, 19 May 2022) 37.

19. Rothstein B and Uslaner EM, `All for All: Equality, Corruption, and Social Trust' (2005) 58(1) World Politics 41.

20. Rothstein B, `Social Capital in the Social Democratic Welfare State' in B Rothstein, Social Traps and the Problem of Trust (CUP 2005) 71, doi:10.1017/CBO9780511490323.

21. Tokayev KJ, `A Fair State. One Nation. Prosperous Society: President Kassym-Jomart Tokayev's State of the Nation Address' (Official website of the President of the Republic of Kazakhstan, 1 September 2022) <https://www.akorda.kz/en/president-kassymjomart-tokayevs-state-of-the-nation-address-181857> accessed 8 June 2023.

22. Uslaner EM, Corruption, Inequality, and the Rule of Law: The Bulging Pocket Makes the Easy Life (CUP 2008) doi:10.1017/CB09780511510410.

23. Yevsieiev O, `Illegal Enrichment: Perspectives from Zhylianskaya: Commentary to the Decision no 1-r/2019 of the Constitutional Court of Ukraine from February 26, 2019' (2019) 3 Comparative Constitutional Review 127, doi:10.21128/1812-7126-2019-3-127-140.

24. Zhanuzakova LT, `On Some Issues of Application of Amnesty in the Republic of Kazakhstan' (2022) 17(1) Criminal Executive Law 58, doi:10.33463/2687122X.2022.17(1-4).1.058-063.

25. Zimelis A, `(Non)Determinants of Corruption: A Sceptical View From Eastern Europe' (2011) 4(2) Journal of Comparative Politics 4.

26. Zubieta E, Bombelli JI and Muratori M, `Argentina: The Impact of Implementing Transitional Justice Measures Post Dictatorship' (2015) 15(32) Revista Psicologia Politica 101.

Размещено на Allbest.ru