Legal basis of counteractions against corruption in Kazakhstan

Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012

Author: Alembayev K. , Kazakh-American Free University, Kazakhstan

In the list of important issues of ensuring national security the President of Kazakhstan especially emphasizes the problem of fighting corruption in interrelation with general problems of counteraction against organized and economic crime and terrorism.

According to Doctor of Law professor Habibulin A.G. "corruption is one of the most dangerous factors in the social life, destructively affecting not only national security as a whole, but all its component parts" [1].

Like any other complex social phenomenon, corruption does not have one particular definition which explains a variety of approaches to its study. Historically, the first definition of corruption related to the field of law. From a legal point of view, corruption is anything which coincides with the definition of corruption in the criminal law of a country or what is prohibited by professional codes of ethics. The advantage of this approach is clarity and certainty. Permits and prohibitions described in the law define behavioral limits for society as a whole and for an individual (a citizen and a public servant), to compensate absence of individual or collective ethics.

It should be mentioned that there is a constant change of the meaning of "corruption" under the influence of the international criminal law, which recognizes the spread of corruption in the world and they tries to find new approaches to the problem, including the changes in the meaning.

We can talk about corruption both in a wide and a narrow sense. Considering corruption in a wide sense, which is its characteristic as a social phenomenon, we should note that in this aspect corruption has some quality characteristics, allowing it to be different from other social phenomena.

Research literature concerning this problem distinguishes the following social features of corruption:

- Deviation of behavior of the corrupt elite from the public interest of the majority;

- Use by the corrupted elite of the coercion method to achieve the powerful economic domination;

- Informal character of activity of participants of corruption relations;

- Illegitimacy of usage by the participants of corrupt relations of tangible and intangible benefits owned by the Company and the state, as well as the means to achieve them.

N.A. Shaikenov in his work called "Theses on corruption" points out that corruption in a narrow sense is a phenomenon in which officials deliberately neglect their duties or act against those duties for certain remuneration. Corruption always involves both parties those who buy and those who, being bribed, act contrary to their official duties. Along with corruption in a narrow sense there is bribery and bureaucratic self-entrepreneurship. Bribery is different from corruption because officials are bribed not for violation of their duties but for the sake of their execution. Bribery originates from uncertainty of duties of the official, deficiency (often artificially created) of administrative and financial capacity of the state.

Therefore corruption as a social phenomenon is an informal deviant behavior of the governing elite manifested in the illegitimate use of their social benefits. The essence of corruption is in the fact that it distorts social relations, destroys normal order of things in the community, resulting in the damage and "corrosion of power."

Summarizing everything above, it is necessary to repeat that corruption has all features for being a social phenomenon, because it effects the interests of the society as a whole, of different social groups and individuals; corruption influences the domestic and foreign policies; corruption affects the state and legal mechanisms, and impacts public and private views, creates certain moral criteria and patterns in the society, etc. [2].

While developing more effective methods of preventing and combating corruption in the public service we must consider the social nature of this phenomenon. But a study of the corruption phenomenon should not be limited only to studying its social facets. Multidimensional and multifaceted nature of corruption makes it necessary to highlight its institutional and legal component [3].

It seems that the most appropriate condition is viewing corruption as any actions that disrupt the normal regulation and development of an industry, country as a whole through the usage of public opportunities for the realization of personal or corporate interests to the detriment of the society.

In 1990 VIII Congress of the United Nations declared that corruption is an abuse of public power for private gain, it is a comprehensive and global problem that significantly violates the principles of democracy and governance, equity and social justice, impedes competitiveness, hinders economic development and threatens the stability of democratic institutions and morals of the society.

The main damage of corruption is that it "corrodes" the state power, making it weak, feeble and fictitious. The main resource of power - trust the population - is deteriorating. Without it the government cannot carry out any sound policy or reform.

As a result, undermining confidence in the government and its authority, corruption eventually hinders the implementation of the public interest, freedom of the individual, causes damage to cooperation with other countries, social and investment policy etc. Corruption is a phenomenon which largely determines the political, economic and cultural development of the society.

As a social phenomenon corruption arises and exists at the level of informal social ties that make up the foundation of the society. It can be found at all levels of political and economic institutions as well as in the systems providing its self regulation. It's not an exaggeration to say that corruption in Kazakhstan has generally become a part of the lifestyle of our citizens. All of them regardless of their social status and position live under conditions of implementation of certain corrupt practices and procedures, which most often are forced by authority. But sometimes the citizens themselves are willing to use corruption to solve a variety of problems. At the level of ordinary public it is usually bribes used for personal, family or clan interests or other social benefits. Opportunities for corruption among officials and public policy and acts of corruption are a lot more different.

The problem of combating corruption is most acute for Kazakhstan. The Criminal Code provides a list of offenses recognized as corruption and offers tough criminal penalties for bribery. The President of Kazakhstan initiated a ban on holding any positions in the state authorities and organizations for people who have previously been dismissed for corruption offenses; those who have committed any illegal act should lose all their privileges. In order to reduce the level of corruption in the judicial system responsibility of judges for committing offenses and disregard of judicial ethics was raised.

Anti-corruption measures are included in some of legislative acts, regulating government purchases, taxation, customs, licensing, and other areas.

The complexity of fight against this social phenomenon is in the fact that corruption is not only of hidden, but also of contractual nature. In most cases it does not lead to complaints as both sides benefit from the illegal deal. Even extortion of a bribe is not always appealed against because people do not always have confidence in the process of combating corruption. And for that there is some justification, both objective and subjective factors relating to both domestic and foreign experience.

Problems connected with corruption in the institutions of public authority since the 90's of the 20th century to the present days more and more often become the object of attention of many local and foreign lawyers.

Special attention to this issue was given in many speeches by Nursultan Nazarbayev, the President of Kazakhstan.

Analysis of corruption control in some countries shows the gap between the declared principles of equality of all citizens before the law and criminal responsibility, a noticeable shift of criminal law control from criminal authorities, intelligence, wealth and poverty to crime, primitivism and poorly adapted subjects from the crimes of the ruling elite and servicemen to the crimes committed by the people whom they manage.

The value of these strains shows the extent of the national hypocrisy in a particular country. The scope of corruption, its specificity and dynamics is a consequence of the general political, social and economic problems. Corruption always increases when the country is in the process of modernization, not just going through the modernization but through revolutionization of public state and economic foundations. It is not surprising that it follows the general laws of development, including negative ones.

In the light of this, a special role is assigned to legislation in the field of combating corruption.

The fight against corruption has an extensive, rapidly growing international legal basis. Currently a number of international legal documents against corruption has been adopted: Recommendation of 32 members of Senior Experts Group on Transnational Organized Crime accepted by the Political Group of Eight countries in Lyon on June 29, 1996; The International Code of Conduct for Public Officials (Resolution 51/59 Assembly as of December 12, 1996, appendix), the United Nations Declaration against Corruption and Bribery in International commercial Transactions (resolution 51/191 of the General Assembly as of December 16, 1996, appendix), Resolution 51/59 of the UN as of January 28, 1997 "Fight against corruption"; The Organization of Economic collaboration and development convention on Combating the Bribery of Foreign Public Officials in the international Business Transactions as of November 21, 1997, the Criminal Law and Civil Law Convention on Corruption, adopted by the Council of Europe on May 1, 1999, Resolution 54/128 Assembly as of January 28, 2000, "Actions against corruption", the UN Convention against Transnational organized Crime as of November 15, 2000, the UN Convention against corruption as of October 31, 2003, and so on.

The legal basis for the counteractions against corruption has been created and is still being improving in Kazakhstan.

The situation in Kazakhstan society processes is accompanied by measures aimed at combating corruption.

The complex nature of this phenomenon and its connection with other criminal activities requires not only focusing attention but also clear sequence and a political will.

In July 1998 the President of Kazakhstan Nursultan Nazarbayev initiated adoption of the "On fighting against corruption". The law marks the beginning of a large-scale phase of the fight against corruption [4]. Subsequently in order to fulfill the Act, a number of government programs to combat corruption were initiated.

Anti corruption measures have also been identified in the Strategy of Development of Kazakhstan till 2030. They are associated with the creation of the legal professional state by forming an efficient and modern body of civil servants. The strategy was created to improve the Institute of Civil Service, providing the national system of managing the human resource with a powerful and effective training in the country and abroad with a fair career development, single information system, guaranteed social security system, and with respect to a basic resource - human capital management.

In order to improve the anti corruption law the draft law "On Combating Corruption" (10/25/2012) was developed, which is the top priority of the state policy of Kazakhstan, which contains examples from the world practice [5].

The draft law includes the content of the current Law "On Combating Corruption". However, one of the main ideas of the draft law is to turn anticorruption into a national phenomenon based on the partnership principles of subjects of anti corruption policy, the priority measures to prevent corruption and moral principles in the fight against this phenomenon.

It is necessary to notice that the draft law causes censure. After the content analyses of the draft law, the following recommendations are offered:

1) Article 14 of the draft law "Participation in the fight against corruption of civil society. Paragraph 1 of the article provides the right of associations of citizens and their members or authorized representatives as well as individuals in the prevention, detection, and anti-corruption offenses (except in cases where the law is referred to the exclusive competence of the authorized subjects in the field of anti-corruption) to request and receive information on the prevention and fight against corruption from authorities of the state power and local self government.

For the purpose of a smooth execution of this right it is recommended to define terms of providing information about activities to prevent and control corruption, degree of responsibility of public authorities and officials for the delays or refusal to provide such information.

According to article 5 of the draft law noncompliance of state authorities with deadlines for providing or refusal to provide information on activities to prevent and fight against corruption should be seen as the corruption factor (a phenomenon or combination of phenomena that generates corruption offenses or promotes their spreading).

That in turn will increase the effectiveness of the rights of citizens associations, their members, delegates as well as individual persons in obtaining information.

2) The draft law provides the possibility for the participation of civil society in the fight against corruption (Article 14). Yet the mechanism of the implementation of this law is not provided. That is why we must carefully regulate the law forms, methods and guarantees of the powers of citizens and their associations, provided for in Article 14 of the draft law.

3) Article 57 of the draft law "Responsibility of persons who deliberately reported false information about corruption offenses."

This article provides responsibility of people who have reported false information about corruption offenses.

In this case, as a subject responsible for the false information about the corruption offenses in relation to a particular person, if their actions do not constitute a criminal offense the article defines only government officials and staff of law enforcement agencies.

Thus, this article does not provide responsibility of Kazakhstan citizens, foreign citizens and stateless people for false information about corruption offenses in relation to a particular person if their actions did not constitute a criminal offense. Article 57 allows those people to avoid punishment.

In order to prevent such actions from the citizens of Kazakhstan, foreign citizens and stateless people it is recommended to develop and provide a mechanism of responsibility for those people within this article.

Thus, corruption is a phenomenon which has multi structured and multi level content, the development of measures to combat it requires a complex approach as well as active involvement in the process of combating corruption of all stakeholders including the public and public institutions. The main directions of modern anti corruption strategy must be defined by preventive measures focused on the effective neutralization of corrupt activity in the country.

REFERENCES

1. Khabibulin A.G. Corruption as a threat to national security: methodology, problems and ways of settlement. // Russian Law Magazine, 2007.

2. Zhukov L.A. Organizational and legal aspects of fighting corruption. - 1999. - 300 p.

3. Alaukhanov E.O. Anti-corruption legal policy - Almaty, 2009. - 256 p.

4. Law of the Republic of Kazakhstan "On Fighting Corruption" as of July 2, 1998 // www.zakon.kz

5. Draft of the Law of the Republic of Kazakhstan "On Counteractions against Corruption" as of October 25, 2012 // www.zakon.kz



Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012

  
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