The article covers the constitutional basics of criminal law humanity and implementation of humanistic principle of criminal law retroactive effect in comparison with historical aspect of its development. This article is attractive for foreign editions that it gives opportunity to make comparative analysis of applying theretroactive effect principleof the criminal in comparison with historical aspect of its development.
Punishment in the Criminal Code of RK of 2014 is considered as the measure of the state coercion appointed according to the court verdict for the purpose of recovery of social justice, correction of the convict and the prevention of new crimes (Art. 39 of the Criminal Code of Kazakhstan 2014. So, at least three signs are inherent in punishment: its basis –commission of criminal offense, its legal source - the adjudication, its purpose - general and special prevention.
In many cases of application of repressions by judicial authorities of the 20-40th years these signs were not observed. First, as it was shown above, repression followed by no means not only for the committed crime - quite often it was reaction to a social origin, membership of the person in earlier existing political parties, membership in opposition to the All-Union Communist Party (bolsheviks), etc. Secondly, repression was applied not only by court, but also extrajudicial "quasijudicial") bodies and even regular by the territoriesadministration. At last, thirdly, in case of extrajudicial application there was talk of of correction and re-education of the convict and but about his physical destruction or of long-term or lifelong isolation from society. The main orientation of repressions was not concealed in legal acts of the 30th years. "Punishment, - Art. 7 provides "of the leading
top according to the Criminal Law the Russian SFSR (Soviet Federated Socialist Republic)" (1919), these are those measures of forced impact by means of which the power provides this order of the public relations from violators of the last (criminals)". Further: "It is possible to secure public order from future criminal acts of the person which already committed a crime by his adaptation to this public order or if one cannot be adapted,he shall be isolated and in exceptional cases, shall be destructed physically" (Art. 9).
Even more definitely it was stated in Criminal Codes of 1922 and 1926. The criminal code of 1922 proclaimed the task protection of the state of workers not only against crimes, but also "from socially dangerous elements" and this protection was performed by application as punishments and "other measures of social protection" (Art. 5). And CC (Criminal Code) of 1926 which doesn't use the term "punishment" directly specified application of social protection measures, besides criminals, also to persons, "constituting danger on the communication with the criminal environment or on the last activities" (Art. 7). As provided by Art. 22 Main beginnings of criminal legislation USSR and federal republics (1924), exile and dispatch could be applied to such persons "as irrespective of attraction them to judicial responsibility, and in that case when they... will be justified by court, but are acknowledged socially dangerous".
Owing to these circumstances would be legally more precisely not to apply the term "punishment" to the repressive measures performed by political justice, especially by its extrajudicial bodies. Really what to punish for the former imperial official, the merchant, the nobleman, not guilty before the Soviet laws? It was, of course, not punishment, and just liquidation of potential opponents.
Important changes of basic nature took place in 1958 when Bases of criminal legislation and the Basis of criminal trial of USSR and federal republics and then (the 59-60th years) both republican criminal and codes of penal procedure were accepted.
The new criminal legislation established a number of democratic principles. It established, for example, that "only the person guilty of crime execution is subject to criminal liability and punishment" (Art. 3 of KazSSR of 1959). Thereby application of punishment to the persons which didn't commit any crime, but "socially dangerous on the communications with the criminal environment" was cancelled. In the same article it was told that "nobody can be found guilty of crime execution and also will subject to criminal sanction precisely according to the court verdict and in compliance with law". It provided inadmissibility of extrajudicial repression.
Further, the new criminal legislation completely refused institute of analogy. The criminal code included article about operation of the law in time where it was provided that "the law establishing punish ability of act or strengthening punishment, has no retroactive force" (St. 5).
All bases provisions of 1958 were fully used by preparation of the first criminal code of the Kazakh SSR of 1959.
However dilatability of the issue concerning the right of the legislator to refuse this or that principle of operation of the law in time or to limit it in the theory of the criminal law continued to remain. So, A.
Tile claimed that the provision "that the law has no retroactive force" isn't the principle of the legislation at all [1. page 29].
The most part of scientists agreed in opinion that, having rights to refuse this or that principle of action of the criminal law in time or to delimit it, the legislator shall stipulate surely the actions in the relevant law according to the UN pact of 1948 "Universal Declaration of Human Rights". During the post-reform period a situation sharply changed. By development of theoretical model of the Criminal code and acceptance on July 2, 1991 of Bases of the penal legislation of USSR and federal republics the retroactive effect principle of the criminal law had undergone essential positive changes. Development and adoption of the new Criminal Code of Kazakhstan in 1997 took place under conditions when the regulations on the retroactive force of the law were enshrined in the subparagraph 5) of point 3 of article
77 of the Constitution which said: "The laws establishing or strengthening responsibility, assigning new obligations to citizens or worsening their situation have no retroactive force". The independent regulation about retroactive effect of the law enriched also the new Criminal Code of Kazakhstan. In p.1 Art. 6 there was a refining that along with the laws eliminating crime or punish ability of act and commuting responsibility or a penalty, also the laws otherwise improving a provision of the person which committed a crime have retroactive force". Thus, concerning a question of action limits of softer criminal law Criminal Code of Kazakhstan reflects modern humanistic criminal precepts of law. Further it is necessary to pay attention to the next moment. According to CC KazSSR, especially dangerous recidivists by Art. 23 served sentence in high-security penal colonies. According to the item 4 of the 5th Art.
46 of the Criminal Code of Kazakhstan, especially dangerous recurrence of crimes is also the basis for appointment to the convict of correctional high- security penal colony.
K. Zholumbayev considers that such provision violates the rights of especially dangerous recidivists serving sentence in correctional high- security penal colony. In particular, that the persons according to Art. 23-1 of CCKazSSR recognized especially dangerous recidivists can continue to serve sentence in correctional high-security penal colony provided that the crimes committed by them during action by CC KazSSR will be acknowledged according to part 3 of the article 13 Criminal Code of Kazakhstan especially dangerous recurrence. Otherwise owing to retroactive effect more favorable for the condemned law, these persons shall be transferred to colony with softer custodial control [2, page 32-33].
Also Supreme Court Presidium of the Republic of Kazakhstan came to a similar conclusion, in our opinion, by consideration of a sentence of the East Kazakhstan regional court with the changes made by board of the Supreme Court on case of citizen K. Karakenov condemned according to Art. 88 p.1 the "a" item CC KazSSR and under article 179 of "b,c" 2 items the Criminal Code of Kazakhstan by 15 years of imprisonment with serving sentence in corrective labor colony, a particular treatment purpose of colony type is wrong on the following bases: determining this type of the mode, the court recognized that according to requirements acting at the time of crime execution on CC KazSSR it could be recognized as especially dangerous recurrence. However as criminal case is considered in 1998 concerning K. Karakenov by provisions of Art. 5 of the Criminal Code of Kazakhstan, the new criminal law shall be applied and according to the item of the p. 5 of Art. 48 the Criminal Code of Kazakhstan determined a severe looking of the mode of corrective labor colony, as in case of a recurrence of crimes to the person which was earlier leaving imprisonment.
The Art. 7 of the Enforcement of the Criminal Code Act of RK provides: "The persons recognized by especially dangerous recidivists according to Art. 23-1 of UK KazSSR serve custodial sanction in correctional high-security penal colony". It means that the persons recognized during action of CC KazSSR by especially dangerous recidivists and containing at the time of the introduction of the Criminal Code of Kazakhstan in high-security penal colony will be left in these colonies even if the committed crimes don't form especially dangerous recurrence. That is in this case the legislator refused giving of retroactive effect to softer law, as well as giving of such force to more stringent law is gross violation of the basic principle of the constitutional state – the principle of legality [3, page 59-60]. Neglecting the principles to please to momentary interests, is noted by A. I. Boytsov, easily leads to refusal of the principles in general. The refusal in providing retroactive effect to the law [4, page 61] improving a provision of convicts not only contradicts concepts of justice and humanity, but also interferes, in our opinion, with punishment goal achievement. Such scientists as S. G. Kelin and others paid attention to manifestation in regulations on retroactive effect of the law of softer penal statute of concepts of justice and humanity also [5, page 36-37].
The refusal of providing retroactive effect to more humane law contradicts also the conventional principles and rules of international law. If the court sees that the laws or other regulatory legal acts which are subject to application restrain RK of the right and freedom of the person and the citizen enshrined in Art.
78 by the Constitution, it is obliged to suspend proceedings and to address to the Constitutional Council with idea of recognition of this act unconstitutional.
Consideration of historical aspects of development of the retroactive effect principle of the criminal law allows to draw a conclusion on a certain regularity of such development in a way of a civilization and humanization of the penal legislation.
Despite some departures from this regularity taking place during various historical periods, the rules about retroactive effect of the criminal law enshrined in the new Criminal Code of Kazakhstan in general answer, in our opinion, a concept of justice of the criminal law.
- Thiele A. A. Time, space, law. Force of the Soviet criminal law in time and space. - M, 1965. - 121
- Zholumbayev M. K. Especially dangerous recurrence of crimes and retroactive effect of the criminal law//Legal reform in Kazakhstan. – 2000. - No. 1. - Page 32-33.
- Zhurshibayev History of human rightsemergence//Law and time. – 1998. - No. 5. – Page 59-60.
- I.Boitsov.Criminal law force in time and space. - SPb.: Publishing house St. Petersburg University, 1995. – 260 pages.
- Kelin S. G. Soviet Criminal law. – M, 1961. - 55