BULLETIN of L.N. Gumilyov Eurasian National University Law Series

Specialized investigative courts and judges in the Republic of Kazakhstan

E. Ablaeva — Fri, 27 Sep 2024 00:00:00 +0000

The paper deals with the issues of arrangement, organization and functioning of specialized investigative courts and judges in the Republic of Kazakhstan.

The general and particular factors that were the conditions for the emergence and formation of specialized investigative courts and judges in the Republic of Kazakhstan are described.

The relevance of the chosen topic is connected with the course of development of the judiciary and the improvement of the judiciary of the Republic of Kazakhstan in accordance with the principle of «specialization of courts and judges» that has lasted for three decades. At the same time, the ambitious goal of the Republic of Kazakhstan – «in 2050 to become one of the thirty leading nations of the world» makes this topic relevant. As a rule, it is impossible to achieve a given goal without a competitive national legal system that meets the new challenges of the time and all international standards in the field of rights protection. Accordingly, the relevance of the topic increases with the approval in 2015 of the Presidential Program «Plan of the Nation - 100 Concrete Steps» on 5 institutional reforms that Kazakhstan should confidently go through to enter the top thirty leading countries, strengthen the Kazakh state, create a modern state. Within the framework of the II Institutional Reform «Ensuring the rule of law», the function of judicial control over the activities of state administration and local self-government bodies, as well as criminal prosecution bodies, is of particular interest.

The viability and relevance of investigative courts and judges are shown.

Based on the results of the study, conclusions are drawn and recommendations are given.

The problem of ensuring and protecting civil and political rights in the countries of Central Asia

A. Dossanova, Zh. Iskakova — Fri, 27 Sep 2024 00:00:00 +0000

The article considers the main issues in the field of protection of civil and political rights in the countries of Central Asia. The study examined the historical development and current state of the problem of ensuring civil and political rights in the Central Asian states. In the course of the study, decisions of the United Nations treaty bodies and scientific literature on the topic of the study were examined. In the course of the study, the national legislation of the countries of Central Asia was examined. The study showed that the following civil and political rights and freedoms are seriously violated in the countries of Central Asia: freedom of speech, freedom of assembly and association, freedom of conscience and religion, the right to a fair trial and the right not to be subjected to torture and other cruel acts and forms of punishment. The study proposed a conclusion to consider amending national legislation and forming new mechanisms to ensure civil and political rights in order to protect and safeguard the right to freedom of expression and not to be subjected to torture or other cruel punishment in the countries of Central Asia.

Liability in the context of the application of artificial intelligence in armed conflicts

A. Khassanay, A. Abylaiuly — Fri, 27 Sep 2024 00:00:00 +0000

The relevance of the study is determined by the fact that due to the development of military technologies, their use becomes a threat to national and international security, in connection with which there is a high risk of violating the norms of international law. Based on this, the purpose of the article is to analyze the legislative doctrine in the context of the application of artificial intelligence in armed conflicts. For this purpose, such methods as logical analysis, functional analysis, deduction, induction, formal-legal, dogmatic and others were used. During the study, the legislative doctrine of Kazakhstan was examined, which included conducting an analysis of the provisions of the Constitution, Regulations and decisions of the Constitutional Court. It also analyzed international legal acts, including the Convention on the Prohibition of Certain Weapons, the Geneva Convention and its Additional Protocols, with a focus on identifying violations and applying the principles of international law to assess unlawful acts in armed conflicts. Particular attention is paid to identifying the actors involved in such acts for the subsequent application of responsibility under international law. The idea of developing a specialized international instrument aimed at comprehensive regulation of the peculiarities of the use of artificial intelligence in armed conflicts is put forward. The results obtained have practical significance in providing recommendations aimed at considering ethical aspects and resolving liability issues related to the use of artificial intelligence in the context of armed conflicts.

Issues of settlement of investment disputes between the Republic of Kazakhstan and individuals or legal entities of other states.

A. Bazarbayev, A. Karatayeva — Fri, 27 Sep 2024 00:00:00 +0000

Since the early 1990s, Kazakhstan has been actively attracting foreign direct investment (FDI), concluding various investment agreements, and enacting legislation to encourage this process.

To encourage foreign capital, as well as the need to settle investment disputes, in 2004 the Republic of Kazakhstan ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, March 18, 1965. Washington, March 18, 1965.

As follows from the Resolution of the Government of the Republic of Kazakhstan dated July 15, 2022 "On Approval of the Concept of Investment Policy of the Republic of Kazakhstan until 2026" for the period 2010-2020 the level of foreign direct investment amounted to 250 billion USD.

According to this Resolution, the level of re-investment of foreign capital in our country's economy for the period 2005-2020 remains at a low level of 15 percent, while the world average is 30-35 percent.

The creation of favorable investment conditions, the promotion and protection of investors' interests and the development of mechanisms to compensate for losses in the event of nationalization or expropriation play a key role in attracting foreign investment.

Thus, from the perspective of foreign investors, one of the problematic aspects of the country's investment attractiveness is the lack of confidence in the judicial system, including the enforcement of arbitration awards within the judicial system of the Republic of Kazakhstan.

In the opinion of the author, the practical significance of the article lies in the development of proposals for the improvement of investment attractiveness through the elimination of contradictions in the legal acts of the Republic of Kazakhstan in the settlement and resolution of investment disputes within the framework of obligations under the Convention of 18 March 1965.

A biy’s court and a council of elders as a historical prerequisite for mediation in Kazakhstan

М.ZH. Kalshabaeva, S.А. Sartayev, N.B. Tauyekelov — Fri, 27 Sep 2024 00:00:00 +0000

In Kazakh history, there was a tradition of solving various conflicts in society with the help of the biys and a council of elders. These types of government institutions were the most accessible to thepeople. Their activities were based on the ideology of justice, humanity, and its ultimate goal was to reconcile the disputing parties and lead them to peace. It was every biy’s and elder’s sacred duty to show full justice to the disputing parties during the settlement of the case. "The ideal of conflict is peace" was found to be one of the main principles underlying the court of biys in nomadic Kazakh society. This, in turn, is one of the main tasks of mediation in modern Kazakhstan.

The article attempts to identify the historical continuity of modern mediation and two traditional institutions (the court of biys and the council of elders) with peacemaking and reconciliation activities. A review of the writings of various scholars and historical archive materials was made to determine the court of biys and the activities of biys aimed at peacemaking and reconciliation. The specifics of the activities of the сcouncil of еlders, which is one of the oldest institutions in the traditional Kazakh society, were also identified. The principal avenues for the revitalisation and modernisation of traditional institutions in the context of the Republic of Kazakhstan's current developmental trajectory have been identified.

The legal status of participants in armed conflicts in international humanitarian law

M. Zhusupbekova, E. Toylybekova, Zh. Shukenova — Fri, 27 Sep 2024 00:00:00 +0000

At a time when the world is gripped by local and full-scale military conflicts, the question of who can be held accountable for war crimes remains relevant. War has no excuses, because without exception it is associated with cruelty and violence. However, even in conditions of military conflicts, the warring parties are obliged to comply with international regulations in order to avoid unjustified casualties and destruction. International humanitarian law clearly separates the two polar parties involved in hostilities - combatants and civilians. Such a separation is necessary in order to understand who a direct participant is and who needs protection in armed conflicts. In this regard, the article pays great attention to the study of documents establishing the status of direct participants in armed conflicts and civilians. For a comprehensive study of the identified issues, the Geneva Conventions adopted in 1949 and the Additional Protocols thereto of 1977 were analyzed. Special attention is paid to Additional Protocol I, which develops the main provisions of the Geneva Conventions relating to the protection of victims of international armed conflicts. In these documents, the rights of combatants and civilians were regulated by international law, as well as the status of medical personnel and representatives of the clergy in conditions of military confrontations is separately regulated. In the presented work, international and non-international armed conflicts were also studied.

The imposition of punishment within the framework of criminal law

G. Rustemova, G. Osmanova, A. Bizhanova — Fri, 27 Sep 2024 00:00:00 +0000

The issue of punishment and its appointment is very relevant both in the country and in other states. Here we are talking about the social consequences that can be achieved in criminal law when imposing and applying punishment to persons found guilty of committing a criminal offense.

In recent years, Kazakhstan's criminal policy has been paying more attention to combating serious and especially serious crimes, facilitating criminal liability for less serious and moderate crimes. That is, in the first case, various grounds for the application of punishment for crimes not related to isolation from society are considered, and in the second - the possibility of appropriate impact on convicts of punishments in the form of imprisonment.

As already noted, in the article, the authors assess how often types of punishments are considered in criminal sanctions, based on the general grounds for imposing punishment on the guilty person in order to achieve the purpose of punishment. At the same time, the relevance of this issue indicates that there are difficulties in imposing punishment, taking into account aggravating and mitigating circumstances in accordance with criminal law. In the article, the authors provide recommendations on mitigating circumstances.

The purpose of the research work is to identify contradictions that arise in law enforcement practice when imposing punishment.

The paper uses formal logical, historical and comparative methods.

Features of the legal mechanism for ensuring national security of the Republic of Kazakhstan in the conditions of participation in the Eurasian Economic Union

B. Umitchinova, G. Menzyuk — Fri, 27 Sep 2024 00:00:00 +0000

The article examines the problems of functioning of the mechanism for ensuring the national security of the Republic of Kazakhstan as a participant in the Eurasian Economic Union. The activities of the EAEU as an international organization for regional economic integration are aimed at creating favorable conditions for the development and increasing the competitiveness of the economies of its member states. At the same time, a single economic space, a common external customs border, and the competence of supranational bodies of the Union lead to challenges and threats to the national security of its members. Effective counteraction to these challenges and threats is impossible without an effective mechanism for ensuring national security, which, under the conditions of Kazakhstan’s membership in the Union, is ensured not only at the national (domestic) level, but also at the international (at the EAEU level) levels.

In the process of research, an idea was formed of the legal mechanism for ensuring the national security of the Republic of Kazakhstan under the conditions of membership in the EAEU, a systematic and comprehensive analysis of its basic elements was given, and shortcomings in the functioning of this mechanism that pose threats to the national security of the Republic of Kazakhstan were identified.

The authors proposed recommendations for improving the mechanism for ensuring national security of Kazakhstan in order to respect national interests in the context of participation in integration processes.

The legal basis for the use of digital technologies in the registration of rights to natural resources.

D. Japarkulov, M. Gussev, D. Baideldinov — Fri, 27 Sep 2024 00:00:00 +0000

Currently, digital technologies and artificial intelligence are increasingly being used in our country to solve public administration issues. One of the tasks of public administration is to control registration activities in the registration of ownership and use rights to natural resources. The current registration procedure is characterized by time costs, paper turnover, corruption risks, and the possibility of falsification of documents.

The purpose of this article is to analyze the registration process of registration of real rights to natural resources and formulate proposals for improving this process through the prism of digital transformation.

In this study, we have determined that electronic registration is a positive phenomenon that solves many negative issues of the current registration process, simplifying it and making it more open and accessible; however it does not fully satisfy the current needs of society in the field of legal rights registration.

The authors of the article substantiate the need to use digital technologies in the registration process through the use of the block chain process.

Legal liability for violation of the legislation on the Responsible Treatment of animals

B. Zhusipova, A. Sopyhanova, N. Ybyray — Fri, 27 Sep 2024 00:00:00 +0000

The article deals with topical issues related to bringing to justice for animal cruelty in modern Kazakh law. In this regard, there is a need to study offenses against animals, in particular violations of legislation on responsible treatment of animals.

The purpose of the study is to study the legal regime of communication with animals in the modern legal system of the Republic of Kazakhstan, to determine the types of liability for violation of legislation on responsible treatment of animals, legal control over the protection of animals from erroneous manifestations, to prepare proposals to improve the rules and current legislation to ensure the needs of animals. The objectives of the study are to characterize the types of offenses based on foreign legislation and judicial practice, the reasoning of scientists and to give their own author's conclusions on improving the current legislation.

The authors, starting with the analysis of the legal status of animals and ending with the attitude towards animals not only as things, but also recognizing them as beings capable of experiencing suffering and emotions, draw attention to the need to clarify the responsibility of the animal owner in this area of public relations in case of violation of the rules of keeping pets, a possible threat to the safety of others.

Various branches of the law of the Republic of Kazakhstan analyzed the responsibility for animal cruelty established by civil, criminal and administrative law.

The work carried out as a result allowed the authors to formulate a number of recommendations on current legislation in the field of regulating the situation when pets violate the rules of handling them.

Types of accomplices to the crime and features of the qualification of acts under the criminal legislation of the Republic of Bulgaria

G. Turgynbek, Z. Abdukarimova, А. Rzabay — Fri, 27 Sep 2024 00:00:00 +0000

The article discusses the features of the institution of complicity under Bulgarian law. In modern science, the problems of complicity are the subject of detailed and extensive research. However, there is no consensus on a wide range of issues. This thesis is also confirmed by the fact that the main problem in defining complicity is the problem of the dual nature of complicity as the actions of each and as the actions of all together. The procedure and limits of bringing to criminal responsibility both directly the perpetrators of the crime and the accomplices and instigators depend on this, the activity of law enforcement agencies in their fight against crimes committed in complicity depends, contributes to the separation of these crimes from individual crime and, as a result, the establishment of legality.

The relevance of the study is due to the fact that for a long time the dispute about the classification of accomplices in a crime has not ceased and a unified point of view on this issue has not yet been developed. All this gave rise to the emergence of several concepts of classifying accomplices in a crime such as objective, subjective and mixed. However, despite the existence of different approaches, most scientists are inclined to think that it is necessary to classify accomplices by the nature and degree of participation of persons in the commission of a crime. In this regard, it is very useful to study the institution of complicity in the criminal-legal theory of the Republic of Bulgaria. In this article, the problem of complicity is considered through the prism of complex criminal activity, since complicity continues to be one of the most serious problems of crime, including because in most cases the most dangerous crimes are committed by the joint efforts of several persons.

Powers of the Personal Data Protection Authority in Europe and Kazakhstan: comparative analysis, recommendations for improving the activities of the Kazakhstani Personal Data Protection Authority

S.B. Akhmetova, D.A. Tursynkulova, N.S. Ibrayev — Fri, 27 Sep 2024 00:00:00 +0000

The progressive development of digital technologies has penetrated all spheres of human activity, society, business, and the state. The constant development of digital technologies entails risks and threats to human rights and freedoms, honour and dignity, and well-being. States, as guarantors and defenders of human rights and the right to the protection of personal data, are improving legislation and the activities of executive bodies. European legislation emphasises the vital role of personal data protection authorities (DPA). At the legislative level, the General Data Protection Regulation (GDPR) obliges DPAs to raise public awareness and provide advice and guidance on personal data law and its uniform application.

This article examines the powers of European and Kazakhstani DPAs. We will look at European legislation on the functions of DPA. Next, we will demonstrate the Estonian experience and look at the activities of the Kazakhstani DPA. We conclude that it is necessary to allocate DPA in Kazakhstan to an independent, separately existing executive body specialising exclusively in protecting personal data with highly qualified personnel and empower it with additional functions. Strengthening the role of the Kazakhstan DPA will contribute to more effective and improved protection of the right to personal data protection.

The category of legal certainty in the philosophical-legal conception H. Hart

E.V. Mitskaya — Fri, 27 Sep 2024 00:00:00 +0000

This article is aimed at providing those interested in the problems of understanding legal certainty in the concept of the leading British philosopher of law Herbert Hart, whose works have been little explored in domestic legal thought. H. Hart, being a pioneer of analytical philosophy of law, devotes much attention to the language of legal norms, analysis of legal norms in the context of interpretation, judicial discretion and uniform law enforcement practice. The relevance of the study of his works is determined by the fact that the understanding of legal certainty and legal uncertainty as paired categories of law is one of the fundamental and strategic directions of the study of law as a social phenomenon. It is possible to achieve the sustainability of law only through a progressive process of transition from its uncertainty to certainty. This is of direct practical importance, as everyone should know the scope of his or her rights in order not to violate the boundaries of permissible behavior in society. The study of H. Hart's works will help to learn the Western traditions of legal understanding, to compare them with domestic ones, to better understand legal certainty as an ideal to which we should strive through the understanding of legal uncertainty, which is of scientific and theoretical importance for the modern understanding of the effectiveness of law and law enforcement.

Some problems of protection of constitutional rights and freedoms of business entities in the Republic of Kazakhstan

I. Ilyassova, N. Askarbekkyzy, D. Kurmanbayeva — Fri, 27 Sep 2024 00:00:00 +0000

The issue of protecting the constitutional rights and freedoms of entrepreneurs in Kazakhstan have great importance. This statement is due to the special importance of the development of entrepreneurship in Kazakhstan both for the country and for the economy as a whole. The purpose of this study is to consider the problems that violate the constitutional rights and freedoms of entrepreneurs in Kazakhstan. Also, the main ideas in the disclosure of this goal are to determine the state of protection of the rights and freedoms of business entities, to study ways and mechanisms of their protection, to consider international support for entrepreneurs through the prism of special organizations and forums in this area. The scientific significance of the research topic under consideration lies in the new ideas proposed in the conclusions of the study, and the practical significance is presented in the form of a proposal for the adoption of a new law that improves the situation with the protection of the rights, freedoms and legitimate interests of entrepreneurs in the future, based on the principle of freedom of access to information and openness of state control and supervision in the field of entrepreneurship.

The authors investigated a number of scientific and regulatory legal material, on the basis of which conclusions were drawn about the need for a more thorough approach to the mechanisms of business protection.

The issues of protecting the rights of entrepreneurs which was studied in article, their methods, types and mechanisms, the authors are convinced that these issues require a comprehensive settlement. In this regard, the authors present a number of proposals for improving these mechanisms in the legal practice of our country.

On the Correlation of Terminology in the Local Self-Government System in the Republic of Kazakhstan. Defining Terms

K.A. Sabitov , G.A. Alibayeva, E.N. Rakimbayev — Fri, 27 Sep 2024 00:00:00 +0000

In contemporary conditions in Kazakhstan and other foreign countries, significant attention is given issues and problems of organizing effective local self-government (LSG). The study aims to explore the constitutional and legal regulation of LSG in Kazakhstan and to seek innovations in forming an effective financial system for LSG bodies. Various methods were used, including general (theoretical, universal) and specific (empirical or practical) research methods. The research results include the following conclusions: Government authorities and LSG bodies, along with their officials, must continuously improve the legal framework for organizing and developing an effective financial system for LSG bodies in Kazakhstan, taking into account the constitutional norms of building a legal and social state. Effective functioning of LSG bodies primarily depends on their material, technical, and financial resources. It is noted that the establishment of an efficient financial system for LSG in the modern democratic and social world is recognized as a fundamental legal foundation. This study examines the most established and widely accepted definitions of terms and concepts. The analysis and consideration of these and other related concepts are driven by the objective needs of modern times.

Conclusions focus on the legal aspects of these terms and concepts, reflecting the essential features of the concept of forming an effective financial system for local self-government, its theoretical foundations, and their application to the practice of constitutional construction of a real social state in Kazakhstan. The results of the study are expected to assist legislators in drafting a high-quality law on LSG issues.

On the Construction of the SCO Community with a Shared Future for Mankind - From the Perspective of International Law

Li Xue, Cao Jian, Wang Hong-wei — Fri, 27 Sep 2024 00:00:00 +0000

The 21st century is the century of organization. Against this background, General Secretary Xi’s proposition of “building a SCO community with a shared future” has pointed out the direction for the SCO’s development in the context of a century of change. The proposition of “SCO Community with a Shared Future for Mankind” was put forward by General Secretary Xi Jinping from the perspective of building a community with a shared future for mankind and in order to promote the construction of the “Belt and Road”. However, against the backdrop of profound change unseen in a century, international rule of law has been put on the governance agenda and has become a recognized necessary form of international governance. Therefore, the proposition of building a “SCO community with a shared future” needs to be examined from the perspective of international rule of law. First, in terms of causes, the rise of the argumentative international law paradigm has provided an opportunity to inject oriental wisdom into international rule of law, and the demand for international rule of law in the construction of the “Belt and Road” initiative has also put forward practical demands for the construction of the SCO community of shared future. Secondly, in terms of content, the SCO’s insufficient rule-oriented approach, imperfect legal system, and uneven rule of law among its member states are all specific contents that need to be improved in building a SCO community with a shared future. Finally, in terms of goals, building a SCO community with a shared future should achieve the multi-dimensional goals of common prosperity, universal security, openness and win-win cooperation, equality and inclusiveness, and consultation and construction in the dimension of international law, and inject oriental wisdom into the beneficial development of the current international legal system.