Legal safeguards for minors are a key area of government regulation and an integral part of the legal support of the state juvenile policy. Recognition and enforcement of children's rights community does not violate the authority of the older generation, and does not reduce the responsibility of minors in relation to the family and society.
Changes in the political and legal system of modern Kazakhstan have necessitated a rethinking and re-evaluation of a number of previously perceived axiomatic systems. Among such plants the problem of fnctional system of justice. In contrast to the previous period, in which justice was seen solely as a means of protecting the public interest, at the moment the system is perceived in two ways. On the one hand the administration of justice is seen as a separate type of state activity, and the other justice itself is a crucial guarantor of legal support for the legal status of a person, in particular, a minor. [1, p. 24]
Considerable assistance in the implementation of the rights and legitimate interests of the minor has recognized the basic international norms ratified by Kazakhstan. The basis for the formation of the concept guarantees the legal status of a minor are: the Declaration of Rights of the Child (1959), the UN Convention on the Rights of the Child (1989), the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, 1995) UN Rules for the Protection of Juveniles Deprived of their Liberty (1990).
The underlying principle guarantees the legal status of a minor in provision of Article 3 of the UN Convention on the Rights of the Child, where all actions concerning children undertaken by public, private institutions, courts of law, administrative authorities or legislative bodies. [2; p. 52]. International legal acts recommended treating some of them as subjective rights of prisoners, which seems quite reasonable in the first place, in terms of limiting the discretion of the prison administration for the prevention of corruption offenses. Such a legislative solution would increase the value of existing preferential measures by increasing their responsibility for their own destiny. The positive impact of this process could have convicted the provision of law to move the Court with the application radically changing their legal status (such as board of probation and parole).
There are 70% of minors in Kazakhstan, convicted to imprisonment, recommit crimes, often more serious than before. This is due to the negative impact of criminal psychology that exists in institutions where juveniles acquire criminal records and are influenced by adult criminals. [3; p. 235].
There is no doubt the fact of staying in isolation contributes little to the development of the personality of a teenager. The widespread use of alternative measures of liberty deprivation, not a fad, but an urgent necessity, corresponding to the interests of society and the state. Currently the «probation" as a criminal supervision (criminal custody) are increasingly used. The experience of the probation services of the Scandinavian countries, where using of alternative sanctions are widely distributed, such as Denmark, Sweden, Finland, Norway, Russia, has the useful fact that, in these countries recorded a relatively low crime rate. At the same time, these countries are paying special attention to the problem of juvenile delinquency and the social protection of children.
The imposition of penalties, alternatives to imprisonment, in criminal penalties, due to the fact that the deprivation of liberty proved to be ineffective in terms of impact on the correction of convicted persons and the prevention of new crimes. First, because the serving of a sentence of imprisonment prevents further social adaptation of personality, his return to the community: a man in isolation loses socially relevant skills acquired in prison criminal subculture, which is also not conducive to re-socialization of the individual. Secondly, the serving of the sentence without isolation from society under the supervision of qualified personnel (under the tutelage of the criminal, probation) to avoid the negative moral, psychological and physical effects of isolation, as an alternative punishment for social interaction skills to maintain and develop under the influence of the social environment and active assistance probation services. Third, the sanctions are not associated with isolation from society, have significant economic benefits, their use makes it possible to relieve the institution of imprisonment, reallocate resources, to direct the efforts of the state to a more targeted work with citizens who needs help and support, and pose no threat for the security of society and the state. [4; p.169]
The State Probation Service is a public institution that cares about public safety, working with people who are not serving a criminal sentence in prison and in the community (conditional punishment, forced labor), and helping ex-prisoners back into society. The main areas of work are the development of probation services and the organization of the policy executed in the society of criminal penalties and to assist persons after his release from prison. It is helpful to change the order of administration of juvenile justice, which requires appropriate legislative changes and initiatives. In paragraph 4 of Art. 40 of the Convention indicate the need for a broad application of punishments alternative to imprisonment. In accordance with this Article alternative penalties to imprisonment include custody and supervision, probation, nurturing, teaching and vocational training.
In accordance with the "Beijing Rules", adopted by the UN General Assembly in 1985, the juvenile justice should be an integral part of the national development process of each country within the framework of a comprehensive social justice for all juveniles, while contributing protection of young people and maintaining peaceful order in society. This requires continuous improvement of the system of juvenile justice, and at the same time must be taken for the development of progressive social policy for juveniles in general taking into account the need for continuous improvement of staff system3.
Beijing Rules determine the purpose of the system of juvenile justice as ensuring the well-being of the latter (items 5.1, 6.1, 10.3, § 17.1), procedural guarantee which are: the presumption of innocence, the right to be notified of the charges, the right to remain silent testimony, the right to counsel, the right to the presence of parents and guardian, the right to confront witnesses and cross-examination and the right to appeal to a higher authority (paragraph 7.1).
Clash of punitive ideas 'just punishment," intimidation "of general and special prevention" on the one hand and the nurturing of the minor, ensuring his well being on the other hand is the most important practical problem of juvenile justice in the world. Issue on effective organization of the impact on the deviant activity of juveniles should be one of the important areas of the state's juvenile policy. Juvenile government policy should intensify measures to protect a minor against the adverse effects on their criminal environment. Therefore, the trial should serve the interests of the minor and carried out in intelligent consent (p. 14.2), privilege (p.p 8.1, 21.1). In contrast to the general court cases involving minors are considered in closed court sessions. At the same time a very important for the reputation of the child principle of transparencyare strictly observed. The members of the media are allowed to the case file
They are forbidden to attend a court hearing; the names of the defendants are not subject to disclosure, establishes the responsibility of a journalist for the disclosure of the identity of a juvenile offender. The Court takes the right to consider some facts of the case inthe absence of a minor defendant, that’s why he is removed from the courtroom. [5, p. 124] It is considered that the main objectives of juvenile courts, organized either independent or structural units of the district (city) courts should be: to ensure the legal protection of the rights and interests of minors, promoting the prevention of juvenile delinquency; judicial control over the activities of state bodies and officials responsible for the content and conduct of educational work with minors.
Juvenile is needed not only specialization of judges as giving them special professionalism, combining new and unique view of the appointment procedure, but knowledge of psychology, psychiatry, pedagogy, skills, restorative justice and the organization of conciliation. Since the identity of the young offender is in a central position of the courts, he becomes the object of a comprehensive examination.
It is necessary to study the conditions of his life, habitat, atmosphere in the family, at school i.e. all social factors. This approach allows us to make a decision appropriate to the circumstances of the case, age-appropriate, actions affecting the child. In contrast to the general court proceedings in the juvenile justice system characterized by greater simplicity, the child is not burdened with procedural formalities inherent in courts of law. Dialogue between the judge and juvenile offender reminds likely a friendly conversation than an interrogation. [6, p. 224]
In accordance with international practice, the work of a judge in juvenile court relies on the work of social workers, facilitators, mediators between the defendant and the victim, guarantors for the proper conduct of the accused is not in custody teenagers, psychologists, doctors and teachers. Adviser visits the family, school, teenager’s workplace and regularly submit reports to the judge (test must be prepared, for example, every two weeks or once every two months). Sometimes the judge instructs the supervisor to exercise such control until the court at the stage of investigation. The adviser can cause a teenager to talk to the court, negotiate with relatives, and find solutions to problems. Mediator a person independent of the judicial or law enforcement authorities. At present both sides of reconciliation a minor who has committed act and the victim are present. For the implementation of the reconciliation teenager must take a step forward. The reconciliation agreement is sent to the court. The Court agrees with him (the case is closed) or disagree (the judge has the solution).
The important mechanism for maintaining consistency of practice level of scientific achievement and condition is recognized the need for extensive use of research results as a basis for rational policy in this area. In condition of rapid and often radical changes in the life style of young people, and in the forms and extent of juvenile crime, society's response to juvenile justice and delinquency is rapidly becoming obsolete and inadequate. The exact definition of the objectives and functions of the justice of their division with those of other systems of the state mechanism are the necessary condition to find reliable criteria for evaluating the quality of justice. Over publicity defined goals of justice does not allow to determine its effectiveness correctly, as in the achievement of these goals involves not only the court, but also other government agencies. Overly narrow definition of justice goals can shift off the court part of the "social burden", which must comply the justice and, therefore, its effectiveness is doubtful. There is need for continuous improvement of methods for the investigation of crimes committed by juveniles, the tactics of investigative actions with their participation and as a fundamental factor of the study of the juvenile offender with his characteristic features of the age and mental.
Juvenile Justice has developed various legal proceedings for juveniles with various problems. Creating a system of educational and legal measures should protect the rights, freedoms and legitimate interests of minors. Such a system should combine a variety of law enforcement and social services, specialized family courts and juvenile, special law enforcement services of the judiciary, and the already-functioning institutions for rehabilitation of juvenile offenders, and employment, recreation, etc. Law enforcement practice argues that advances in the prevention of crime may be the most significant event if the principle of the unity government is accepted as a basis. [7, p. 98]
Legal possibilities of juvenile courts may not seem relevant to traditional approaches to the administration of justice. Reasonable care for the welfare of the juvenile offender is complemented by measures ensuring joined his awareness of the responsibility and participation in smoothing down the damage caused. Protection and restoration of the violated rights of the victim should be given offense, because it is necessary to protect society from the recurrence of deviant behavior.
The key issue held in Kazakhstan judicial reform should be the consolidation of the legal effect of the judiciary as the development of the mechanism of state power, and increasing the efficiency of the judicial system, in particular. Functioning of the institution of the judiciary in the state mechanism must be able to protect both society and every citizen of the illegal actions of state officials, community groups and individuals, to restrict the activities of the state legal framework.
The problem of juvenile delinquency raises the question of the elimination of this negative phenomenon and finds ways out of it, creates a dilemma: either to punish juvenile offender to the fullest extent of the existing law, or to search for other optimal solutions of the problem of safeguarding the teenager as a legitimate participant in society. Despite the complexity of the problem, the most effective of the measures undertaken by the State. The most actual in solving this problem might be a decision to create in Kazakhstan the juvenile justice system officials, which can serve as a rallying point for the protection of the rights and freedoms of minors. Juvenile justice would be precisely the universal center, able to ensure that all services working with children work coordinated and made links in a single system of care for children and protect their rights. [8, p. 139]
A legal safeguard for minors is a key area of government regulation and an integral part of the legal support of the state juvenile policy. Recognition and enforcement of children's rights community does not violate the authority of the older generation, and does not reduce the responsibility of minors in the family and society. The realities of Kazakhstan really affect social-economic and sociopsychological state of children and teenagers in the family and at school. Children have the smallest possible self-defense of their rights and privacy. The future of society at risk, if society does not see the increased needs of children and adolescents in the legal protection and does not provide it. In particularly difficult position minors are left without parents and trusties. Currently, there is a need for more complete and objective notification of the public about the rights of minors.
Reference
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