Criminal Law as the Most Effective Tool for Influencing Crime and

Criminals

Talgat Kurmanovich Akimzhanov

Research Institute of Law, Turan University, Almaty, Republic of Kazakhstan

Keywords: Criminal law, criminality, personality of an offender, a criminal offense, a crime, a misdemeanour offense,

punishment.

Abstract: The article reveals the role of criminal law as the most effective and important tool for combating crime and

influencing the personality of an offender. The author used statistical data of the Committee on Legal Statistics

and Special Accounts of the General Prosecutor’s Office of the Republic of Kazakhstan for a period of 2015-

2020, the results of the analysis of the Criminal Codes of the Republic of Kazakhstan in 1959, 1997 and 2014,

as well as empirical information obtained during the analyses conducted in 2018-2020 by the Research

Institute of Law of Turan University. The purpose of the study was to substantiate the conclusion about

criminal law as an important and effective tool for influencing criminality and criminals, as well as to develop

proposals and recommendations for improving measures of criminal law to increase the effectiveness of

criminal penalties by reducing their negative social consequences. The objectives of the study were the desire

to prove the importance of criminal law in combating crime; to reveal the content of the punishment, its

correlation with the criminal policy pursued in the country; identifying problems in law enforcement practice

in the imposition and execution of sentences and making proposals for improving the criminal legislation in

terms of ensuring its positive impact on criminality and criminals.

1 INTRODUCTION

The significance of criminal law lies in the fact that

its one of the main institutions, as a punishment

imposed only by a court and on behalf of the state,

carries a certain kind of restrictions for a convicted

person who has committed a criminal offense, and

includes various types of criminal punishments, and

in the most special cases even the death penalty.

Following the principles on the highest values of

a person, his life, rights and freedoms proclaimed in

Art. 1 of the Constitution of the Republic of

Kazakhstan, the Kazakhstan (hereinafter – RK) not

only introduced an unlimited moratorium on the

execution of the death penalty on December 17, 2003

by the Decree of the President of the Republic of

Kazakhstan, but also planned to completely abandon

this type of punishment.

Thanks to the functions of the Criminal Code of

the Republic of Kazakhstan (hereinafter referred to as

CC of the RK), the state succeeded in its development

from the moment of the adoption of the Criminal

Code of the Kazakhstan SSR (hereinafter referred to

as the Kazakh SSR) in 1959 and until the adoption of

the Criminal Code of the Republic of Kazakhstan in

1997 and the Criminal Code of the Republic of

Kazakhstan in 2014 and in maintaining the necessary

balance, public safety and stability in society by

increasing the effectiveness of combating crime with

criminal law methods, especially in the difficult 90s.

Criminal penalties have the great importance in the

crime prevention. However, the problems of general

and private prevention of criminal law, its role in

combating crime are not sufficiently developed and

remain relevant at the present time.

2 MATERIALS AND METHODS

The study covered the current criminal and penal

legislation of the Republic of Kazakhstan, other laws

of the RK, regulating the issues of combating crime,

the imposition and execution of punishment in

Kazakhstan. A comparative analysis of decisions

taken by courts in relation to convicted persons in the

Republic of Kazakhstan has been carried out. The

author of the article used the results of the study

(interviewed 100 employees of the penal system, 100

convicts, studied 50 sentences for 2019-2020).

274

Akimzhanov, T.

Criminal Law as the Most Effective Tool for Inﬂuencing Crime and Criminals.

DOI: 10.5220/0010635200003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

274-277

ISBN: 978-989-758-532-6; ISSN: 2184-9854

The statistical reports of the Committee on Legal

Statistics and Special Accounts of the General

Prosecutor’s Office of the Republic of Kazakhstan for

the period from 2015 to 2020 were studied, the

articles of the Special Part of the Criminal Code of the

Republic of Kazakhstan of 2014 were analysed for

their categorization in comparison with the CC of the

Kazakh SSR of 1959 and the CC of the RK of 1997.

3 RESULTS AND DISCUSSION

Much attention was paid to the development of the

criminal legislation of the Republic of Kazakhstan in

the message of the President of the country K.K.

Tokayev on September 1, 2020. He noted that we

have frequent adjustments to it, often without proper

analysis and forecasting, based on the convenience of

law enforcement officers.

Kazakhstan was one of the first states of the post-

Soviet space, at the legislative level, began to

implement a preventive mechanism in the fight

against crime by adopting the Law of the Republic of

Kazakhstan on April 29, 2010 No. 271-IV “On the

prevention of offenses.”

The study of law enforcement practice has shown

that the measures of criminal law impact

(punishment) on persons who have committed

criminal offenses do not achieve the goal set by the

legislator in Part 2 of Article 39 of the CC of the RK,

since the convicted person becomes not better, but

worse during the execution of the sentence.

We obtained data on the presence of negative

consequences of the execution of sentences in the

course of a survey of employees of the penal system,

convicts, and a study of a number of works by

criminologists (Kudryavtsev, 2003; Khokhryakov,

1999; Yeskendirov, 2008). It is necessary to eliminate

the gap formed in theory and practice between crime

prevention and general and private prevention of

criminal legislation of the RK, since criminology and

penal law were once integral parts of criminal law.

Unfortunately, we should agree with those scientists

who believe that the current criminal legislation and

the law enforcement system do not pay attention to

the final result of sentencing, whether the convicted

person has corrected himself or not. A.D. Nechaev

rightly stated that modern domestic criminal policy

really does not have a concept for its implementation.

It is situational, sometimes haphazard. However, it

cannot be argued that conceptuality remains entirely

outside the field of vision of scientists (Nechaev,

2018).

So, for example, in Kazakhstan, the legal policy

pursued at the state level was carried out on the basis

of three adopted Concept of legal policy of the RK,

approved by decrees of the President of the country

(Concept 1 – for the period from 2002 to 2010,

Concept 2 – for the period from 2010 to 2020, 3rd

Concept – for the period from 2021 to 2030). At the

same time, despite the completeness of legal

regulation in the field of combating crime (adopted

by the CC of the RK, the CPC of the RK, the PEC of

the RK in 2014), law enforcement practice and

analysis of the current legislation indicate the existing

unresolved problems in this area.

We agree with those scientists, who believe that

the goals of punishment are clearly overstated in the

criminal legislation. This statement was quite rightly

pointed out by M.D. Shargorodsky in the distant past.

According to him the function of restoration is alien

to criminal law as a protective branch of law

(Shargorodsky, 1973). The need to observe the

balance of justness and punishment was rightly

pointed out by Yu.I. Bytko, while noting that justice

at all times should serve as a guideline in problem

solution of reforming positive law (Bytko, 2017).

Another inconsistency with the life realities is

inherent in what is written in Art. 39 of the CC of the

RK in the requirement to punish “not causing

physical suffering or humiliation of human dignity”,

which was successfully transferred from the CC of

the Kazakh SSR in 1959, and then from the CC of the

RK in 1997, and needs, following the example of

Russia (Article 43 of the Criminal Code of the

Russian Federation), in exception, since it

complicates the work of the bodies executing

punishment. B.K. Shnarbayev rightly points out that

punishment always causes certain deprivations and

suffering to a criminal (Shnarbayev, 2020).

Among scientists there is a point of view that

criminal law norms do not have a restorative function;

in their opinion, the restorative function is inherent

only in the norms of civil law. So, A.L. Tsvetinovic

believes that the restoration of social justice cannot

correspond to criminal penalties. Criminal

punishment is characterized only by compensatory

functions, since in the course of the imposed criminal

punishment, we can talk about compensation for the

physical and moral harm caused to the victim by a

criminal offense (Tsvetinovich, 1996). For example,

in the process of isolating a criminal from society, the

state satisfies the moral costs of the injured party, and

in the process of applying a fine, corrective labour,

and confiscation of property, it contributes to

compensation for property damage caused to the

victim.

Criminal Law as the Most Effective Tool for Inﬂuencing Crime and Criminals

275

According to S.I. Kurganov, the above mentioned

arguments of scientists do not make it possible to

establish how the recovery process takes place during

the imposed criminal punishment, since until now,

due to insufficient scientific development of this

problem, it has not been possible to develop the

necessary set of measures for applying indicators of

the effectiveness of criminal punishments (Kurganov,

2008).

We adhere to the position that, during imposing a

punishment, the restoration of social justice is

allowed, but this process is ensured only partially, and

not in full. For example, in Kazakh customary law

there was not even such a type of punishment as

imprisonment and, accordingly, prisons (Erkin Abil,

2000), and the issues of sentencing were resolved

quite effectively.

The minimum task that should be solved during

the execution of punishment is to prevent convicts

from committing new, repeated crimes on pain of

punishment, and the maximum is their adaptation and

resocialization (Grant Duwe & Valerie Clark, 2017;

Lacey Schaefer, 2018). In the modern doctrine of

criminal law, more attention should be paid to the

doctrine of punishment itself. So, when the CC of the

RK was adopted in 2014, the provisions related to the

sections of punishments in the General Part remained

practically unchanged, although they needed to be

rethought and adjusted.

Correction of a sentenced person presupposes the

application of a set of measures to the convict, as a

result of which the man must change for the better. To

increase the role of criminal law influence on

perpetrators, attention should be paid to the identity

of the offender (Mark Jones, Samantha Coleman &

Stephen Leierer, 2017). As our analysis of court

sentences has shown, the scope of information about

the personality of the convicted person is extremely

scarce, although it is the study of the offender identity

that is the key to success in imposing a correct and

just punishment to the guilty person, as well as his

subsequent correction.

At the same time, work on further improvement

of the criminal legislation of the Republic of

Kazakhstan as an effective tool for influencing crime

and criminals requires constant reflection and

continuation.

4 CONCLUSIONS

Taking into account the results of the study, the

following measures are proposed for further

improvement of the criminal legislation.

1. Criminal law and its institution of punishment,

as an instrument of influencing criminality and

criminals, especially in terms of their

prevention, is not effectively applied in law

enforcement practice.

2. The concept and goals of punishment,

formulated in Article 39 of the CC of the RK,

do not correspond to the realities of life, do not

achieve their goals and need to be rethought

and adjusted.

3. To continue the practice of reduction in the use

of deprivation of liberty in the articles of the

Special Part of the CC of the RK and imposing

a number of restrictions on its application (by

age, illness, etc.).

4. To revise the procedure for parole, by reducing

the mandatory terms for serving a sentence

established in Part 3 of Article 72 of the CC of

the RC.

Taking into account the above mentioned

circumstances, it can be stated that the proposed

approach to rethinking certain aspects of crime

prevention with the forces and opportunities of

criminal law will contribute to solving many

problems facing law enforcement agencies and civil

society.

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