Shukenova Jadira Slamhanovna
New approach to the concept of expert in juvenile justices in
Kazakhstan Republic
Consolidation in article 1 of the Kazakhstan Republic Constitution is the
purpose of the approval in the republic is democratic, secular, constitutional and
social state which puts a problem of formation of strong, independent judicial
authority in the first place.
Both national history and world experience convince that the reality and
effectiveness of democracy principles, humanity and legality in many respects
depend on how the court is arranged and functioned. The citizen should have firm
confidence that his case is in charge of criminal offense commission or the civil
suit, labor dispute – will be considered by independent, objective and fair court.
Without due judicial protection of the right and freedom of the person they can't be
considered as the guarantee, which perfect laws wouldn't be proclaimed. And a
reference to the court for the purpose of protection of the rights and freedoms, a
resolution of conflicts and disputes including with heads of establishments and the
organizations, state authorities in the conditions of the constitutional state represent
a usual standard of people behavior.
The president of the Kazakhstan Republic
Nursultan Abishevich
Nazarbayev, pointed out the successes of judicial reform, achievement in activity
of judicial system, emphasized: «We made a lot of things during this time, and it
admits. But it is necessary to make even more».
Accepted concerning improvement of organizational bases of judicial
authority and the legal proceedings which introduced in it some certain positive
changes, still early to say that judicial reform took place also all problems
connected with formation of judicial authority in all its manifestations are resolved.
The certificate to it is acceptance on August 24, 2009 legal policy concepts of the
Kazakhstan Republic for the period since 2010-2020, providing development
judicial and legal on the basis of continuity and step by step.1
One of the priority directions of social and legal policy of the Kazakhstan
Republic on which realization further state development in many respects depends
on the formation of special legal protection childhood system.
The legal document is a development system of domestic juvenile justice
concept of juvenile justice system in the Kazakhstan Republic for 2009-2011 is
begun approved by the Decree of the President of the Kazakhstan Republic No.
646 from August 19, 2 011. As appears from its contents, the Concept is directed
on development of specialized legal proceedings concerning minors, and also
1
The concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020 the Decree of
the President of the Republic of Kazakhstan from August 24, 2009 of No. 858//the Kazakhstan truth. – 2009. - 28
August
studying and preparation of justifications for formation and development of other
specialized structures of juvenile justice system.2
The main important part of introduction the juvenile justice Concept
determines legislation improvement, considers necessary adoption of the
regulatory legal acts providing considerable role change of social services and
their active participation:
1) as the social worker learning a social environment of the teenager, and
also preparing a range of socializing decisions – for the offer to the judge as
options, possible in the form of alternative to imprisonment;
2) as a mediator – the intermediary – as legislatively fixed subject,
reconciliation of the parties organizing and carrying-out process;
3) as the person promoting socialization of the teenager, coming back from
specialized educational institutions or imprisonment places.
4) in connection with development of system of juvenile justice in the
Kazakhstan Republic creation of the social service which workers – social
psychologists should carry out function of teenagers protection in criminal trial is
supposed. In Kazakhstan practice of participation in criminal trial of specialized
social psychologists on the party of protection of the teenager was already
approved. Such system of justice demands gradual change of the current
legislation, scoping of discretion at all stages of judicial proceedings and at various
levels of administration of justice concerning teenagers.
Certainly, corresponding changes should be brought and in the regulatory
legal acts regulating activity of various departments – as already functioning, and
what will be created in the long term. Implementation of provisions of the Concept
puts before the legislator of a task, concerning a legal the questions which
permission is impossible without permission of the procedural status of the social
worker, volume of their rights and duties.
In this connection there is a question of, whether that the social psychologist
the new participant of criminal trial is, or this is the expert? If he is an expert, there
is a question of a ratio of its powers with powers of the defender.
By the current legislation the expert is the person involved for participation
in investigatory and judicial actions, possessing the special knowledge necessary
for rendering of assistance in collecting, researches and an assessment of proofs,
and also in application of means.
Traditionally the expert is the assistant to the person conducting criminal
trial. The social psychologist is also urged to help the person conducting criminal
trial, to establish the circumstances which are arrpovement, provided to article 481
of the criminal procedural code of the Republic of Kazakhstan. In specialized inter
district court for minors of the city of Astana in June, 2009 positions of the
psychologist and the social teacher which hold events for support of children in
process are entered. Meanwhile, according to Concept section 4.7 «ethics of the
2
The decree of the President of the Republic of Kazakhstan from August 19, 2008 of No. 646 About the
Concept of development of system of juvenile justice in the Republic of Kazakhstan for 2009-2011
social psychologist demand on the irresponsibility, tolerance and confidentiality in
the relations with the client. It means that the social psychologist should always
start with interests of the client. The client of the social psychologist is the minor».
These provisions are included into a contradiction with operating the legislation.
Under the part 1 of article 488 of the criminal procedure code of the
Republic of Kazakhstan, a legislator provided, that during procedural actions
concerning with minor suspect, a defendant under the age of 16, and also who is at
this age, but has mental disorder, the obligatory participation of a teacher or
psychologist is necessary. The teacher or psychologist is allowed to participate in
minor cases by the discretion of an investigator, court or in the petition of defender
that is a statutory agent. The part 1 of the article 84 of the criminal procedure code
of the Republic of Kazakhstan defines the status of a teacher as a specialist, but
there is nothing about psychologist. Meanwhile, the legislator assumes the
situations where the figure of teacher may be replaced by a psychologist. In this
context the psychologist’s figure is secondary in relation to the teacher that is not
absolutely correct. Of course, the teacher has certain knowledge of child and
adolescent psychology, but the extant of his knowledge is not the same against to
the extent of specific knowledge of the psychologists.
But the problem is not only in lack of legislative regulation of the
psychologist’s status, but also in analysis of theoretical aspects of his functional
activity. In the section of juvenile justice development conception his activity has
another direction than the activity of a specialist. In this case it is pertinently to
carry out a ratio of participation aspects in criminal procedure of specialist and
social psychologist.
The distinctive features of specialist’s participation include:
1. The expert possesses smaller procedural independence; his activity is
carried out within the procedural actions controlled by the person conducting a
criminal trial. Evidentiary information in which the expert is assist by its nature
should be available to the perception of investigatory action participants and
cannot carry the inferential nature as at the expert research.
The activity of social employee is to accompany a juvenile at all stages of
criminal procedure at the process of which he examines social and psychological
research both the teenager and his environment.
2. The expert doesn’t examine special research directed to establish new
facts that are unknown to the agency conducting criminal procedure before. The
social psychologist examines the research directed to establish circumstances
declared in the article 488 of criminal procedure code of the Republic of
Kazakhstan.
These circumstances are in the obligatory subject of proof in juvenile crimes
the establishment of which is the prerogative of proof subjects. The establishment
of these circumstances issued by a person, who conducts the criminal procedure.
The actual problems of criminal and procedural legislation and the practice
in its application. The result of a social worker’s research is a statement, which
reflects the established facts of living conditions and upbringing; individual
psychological characteristics of a minor development; his requirements and
interests, reasons to commit a crime, the influence of adults or other minors to a
juvenile.
3. The results of expert’s activity have no independent evidential
significance. Conclusions, recommendations and offers, which will be concluded
by the social psychologist’s results of research, can cause serious effects for a
minor.
Thus, the psychologist and the social teacher, participating in criminal
procedure against a minor, carry out a psychological and educational support to the
minors, who are in trouble with the law; act to raise the degree of psychological
safety, legal and social care of minors, who committed a wrongdoing.
The analysis of the Russian regulations allowed the following ways of the
psychologist and the social teacher activity:
- to support a suspected juvenile, defendant, accused in procedural actions of
investigation agencies:
- to inform the authorized bodies within their competence about the all
identified human offences and interests of minor;
- to submit proposals into the program of minor rehabilitation after
adjudication, etc.
The psychologist, the social teacher has a right:
- as agrees by the investigator, to meet with a suspected minor, defendant for
the necessary individual diagnostic and other work in maintenance mode during
investigation, in the criminal procedure process;
- to participate in examination of a suspected minor, defendant in established
order to enact a contract between the investigation agencies, court, the obtaining of
more complete, accurate and truthful testimony.
- to get acquainted with the necessary documentation for professional
activity with the permission of the investigator and judge to get acquainted with
case materials, to address a request to institutions with the questions connected
with the defense of right and interests of a child.3
Thus, we see that there are the elements of probation in the work of the
psychologist and social teacher. However, a social worker cannot replace the
employee of criminal and executive system, whose duties under the law are to
supervise a probationer teenager, and also minors, who are assigned to corrective
or community works. He can’t appeal to court with a petition to change the term
for serving punishment or the abolition of suspended sentence.
In fact, the social worker carries out these functions, the content of which is
defined by the Beijing Rules. Now, when the criminal cases do not contain the
necessary information characterizing the minor, specialized judge assistants correct
a deficiency; organize the interaction of the court with all bodies and agencies of
the prevention of juvenile crime both during criminal procedure and the execution
of sentence.
3
Kosolapova
N.
V.
Juvenile
justice:
model//http:vesting.mednet.ru/43/30/27.01.2008gola
from
practical
experience
to
conceptual
The work on minor personality study, which is the basis of the juvenile
justice, is limited by current criminal and procedural legislator. In our opinion, the
order of social research of suspected minor personality, the possibility for
placement of a minor in a social observation center, and also the reasons and
circumstances of application of such kind of juvenile research should be described
in detail in the criminal procedure code of the Republic of Kazakhstan. 4
For example, an expert in probation in Russian and Latvia is obliged to
make the card of minor social support in the term of 20 work days. All collected
and prepared materials by expert is sent with the letter signed by the presiding
commissioner on juvenile. An expert in probation also provides an oral explanation
of the individual rehabilitation program that is collected and presented in social
support information.5
The social support card is put by the investigator to the materials if criminal
case and sent with these materials for the research to the regional prosecutor’s
office.
Thus, it is necessary to define the procedural status of the psychologist and
the social teacher concerning with juvenile crime. Specifically, it should be noted,
that in defining them b experts, the scope of authority is automatically extended to
other experts, participating on criminal cases. There are two ways to resolve this
issue:
1. to define the psychologist and social teacher by the independent
participants of criminal procedure;
2. to insert them into an article 84 of criminal procedure code of the
Republic of the Kazakhstan, and, thereby, the spread of power to all experts in
research of objects with drawing up an expert’s conclusion, which has an
independent evidentiary significance.
1. The concept of legal policy of the Republic of Kazakhstan for the period
from 2010 to 2020 the Decree of the President of the Republic of Kazakhstan from
August 24, 2009 of No. 858//the Kazakhstan truth. – 2009. - 28 August
2. The decree of the President of the Republic of Kazakhstan from August
19, 2008 of No. 646 About the Concept of development of system of juvenile
justice in the Republic of Kazakhstan for 2009-2011
3. Kosolapova N.V. Juvenile justice: from practical experience to conceptual
model//http:vesting.mednet.ru/43/30/27.01.2008gola
4. Gold V.V.Opyt of vessels of the Rostov region on justice improvement
concerning minors//Juvenile justice in the Russian Federation: Conference
materials on June 11, 2008, Moscow http://www.rostoblsud.ru
4
Gold V.V.Opyt of vessels of the Rostov region on justice improvement concerning minors//Juvenile justice
in the Russian Federation: Conference materials on June 11, 2008, Moscow http://www.rostoblsud.ru
5
Practical guidance on introduction of model of a juvenile probatsiya in criminal justice system: A
methodical grant for social service providers, establishments and bodies of criminal justice system. – Moscow, 2009.
5. Practical guidance on introduction of model of a juvenile probatsiya in
criminal justice system: A methodical grant for social service providers,
establishments and bodies of criminal justice system. – Moscow, - 2009.