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Defense of the dissertation of Surkova Svetlana Sergeevna for the degree of Doctor of Philosophy (PhD) in the educational program «8D04201 - Jurisprudence»
L.N. Gumilyov Eurasian National University, a dissertation defense for the degree of Doctor of Philosophy (PhD) by Surkova Svetlana Sergeevna on the topic «Administrative-legal regulation of human rights protection against domestic violence in the Republic of Kazakhstan» to the educational program «8D04201 – Jurisprudence».
The dissertation was carried out at the Department of «Constitutional and civil law» of L.N. Gumilyov Eurasian National University.
The language of defense is russian.
Official reviewers:
Alibayeva Gulnar Aytchanovna – Doctor of Law, Professor, Vice-Rector for Research and Commercialization of Kunayev University (Almaty, Republic of Kazakhstan);
Mitskaya Yelena Vladimirovna – Doctor of Law, Professor of the Department of Criminal Law and Criminal Procedure of M. Auezov South Kazakhstan University (Shymkent, Republic of Kazakhstan).
Temporary members of the Dissertation Council:
Kalybayeva Alya Abdysatarovna – Doctor of law science of Kyrgyz-Chinese Institute of Kyrgyz National University named after J. Balasagyn (Bishkek, Kyrgyz Republic);
Zhatkanbaeva Aizhan Erzhanovna – Doctor of Law, Associate Professor, Judge of the Constitutional Court of the Republic of Kazakhstan (Astana, Republic of Kazakhstan);
Zhetpisov Serik Kozhanovich – Doctor of Law, associate professor, head of the department «Jurisprudence» Toraigyrov University (Pavlodar, Republic of Kazakhstan);
Zhanibekov Akynkozha Kalenovich – PhD, acting professor, deputy dean for educational, methodological and educational work of the Faculty of Law of the Kazakh National University named after Al-Farabi (Almaty, Republic of Kazakhstan).
Scientific consultants:
Saktaganova Indira Sovetovna – Candidate of Law, Professor of the Department of Constitutional and Civil Law of the L.N. Gumilev Eurasian National University (Astana, Republic of Kazakhstan);
Yuсel Ogurlu – Doctor of Law, Professor of Balikesir University (Balikesir, Republic of Turkiye).
The defense will take place on August 01, 2024, at 03:00 PM in the Dissertation Council for the training direction «8D042 – Law» in the educational program «8D04201 – Jurisprudence» of L.N. Gumilyov Eurasian National University. The defense meeting is planned to be held offline and online.
Link: https://sul.su/wGem
Address: Astana, K. Satpayev St., 2, Main building, auditorium No. 302.
Abstract (English): General characteristics of the work. The dissertation research is devoted to theoretical and legal problems of family and domestic violence; administrative and legal regulation of the protection of human rights against domestic violence; a social risk factor for the occurrence of this violence; the study of administrative and legal protection measures, as well as the role of authorized bodies in countering, preventing and protecting human rights against domestic conflicts. The international legal norms regulating the fight against domestic violence and their impact on the Kazakh administrative legislation are also studied. Some attention is paid to the disclosure of the main directions of legal protection of persons who have been subjected to domestic violence on the example of the Republic of Kazakhstan, and the existing problems in legislation in order to eliminate them. Relevance of the research topic. The Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution of the Republic of Kazakhstan) states: "No one shall be subjected to torture, violence, other cruel or degrading treatment or punishment" (Article 17). Taking into account the objective need for a more complete and effective implementation of this norm, this dissertation defines the importance and role of administrative legal acts, international legal norms regulating the mechanism of protection of the institution of the family, as well as the role of state bodies and public associations in countering domestic violence. The relevance of the topic is also due to the special attention of the world community and states to the problems of domestic violence, since fundamental human rights and freedoms are violated. Prevention and prevention of this type of offenses is an urgent topic of the demographic policy of the Republic of Kazakhstan, since the increase in violence directly affects the security of society, family and personality. Domestic violence affects all socio-economic strata of society, causes irreparable harm to human health, often leads to death and is not easily detected. In Kazakhstan, the police receive about three hundred reports of domestic violence every day. At least eighty women die every day in the country because of this immorality. In 2023, about 150 were seriously injured, 200 were moderately injured and more than 4,000 were slightly injured. And this data is alarming, because, especially women and children, they are beaten, maimed and killed. In 10 months of 2023, 50,000 people were brought to administrative responsibility for these offenses, and 700 people were brought to criminal responsibility. According to statistics from the World Health Organization, 736 million women are physically abused at least once in their lives, of which more than 640 million (87%) women and girls aged 15 and over have suffered from aggressive actions by partners; from 94 to 99% of victims of domestic violence have experienced various forms of economic violence, 60% of them lost their jobs as a result of pressure from a partner. Taking into account the danger of domestic violence not only in causing harm and death of a person, orphanhood and injuries of children, but also in undermining the institution of family and social ties, devaluation of the highest values of a person: his life, health and inviolability, the Parliament of the Republic of Kazakhstan adopted laws of the Republic of Kazakhstan in April 2024: "On Amendments and additions to the Code of the Republic of Kazakhstan on Administrative Offenses on ensuring women's rights and child safety" and "On amendments and additions to some legislative acts of the Republic of Kazakhstan on ensuring women's rights and child safety". Amendments to these laws are aimed at improving the legal, social, institutional and other foundations of state family policy, strengthening the protection of women's rights and child safety, tightening administrative and criminal liability for violations of their safety, and preventing violence in the family and household sphere. If we briefly trace the history of the "criminalization" of domestic violence in the Republic of Kazakhstan, it looks like this: until 2017, in the country, a case of domestic violence could be prosecuted under two articles of the Criminal Code of the Republic of Kazakhstan - for causing minor harm to health (Article 108) and for beatings (Article 109) with punishment in the form of arrest, fine, correctional or community service; then, in July 2017, a law was passed decriminalizing these articles (battery and minor injury to health became administrative offenses). Decriminalization of physical violence in the past was a mistake, as the growth of offenses in the family and household sphere did not decrease. The two laws mentioned above, adopted in 2024, tightened responsibility for domestic violence, that is, they were criminalized: criminal liability for domestic violence, life imprisonment for murder and sexual violence against children were introduced. Additional measures have also been introduced to protect persons who have been subjected to aggression and violence (responsibility for bullying, for promoting suicide, for dropping children off the bus). As can be seen from the recent changes, the topic we are investigating cannot be disclosed without simultaneously studying and analyzing not only administrative and legal measures to protect human rights against domestic violence, but also criminal law, since it is the criminalization of administrative offenses that is the most urgent problem of today. In this context, there is also a need to study the problems related to the prevention of domestic violence, which is highlighted in the dissertation. An effective legal mechanism for the protection of victims of family violence can develop precisely in the context of the implementation of various preventive measures not only by state bodies, but also by public organizations, which, unfortunately, is not always given due attention. It is preventive measures that are the weakest, most vulnerable and actually ineffective measures at the present time, as can be seen from the above statistics. There are various obstacles to the formation of effective preventive measures in countering domestic violence: the lack of clear regulation of scientific terminology, the degree of prevalence of violence against the elderly (gerontological violence) and violence against the disabled, imperfection of the regulatory legal framework, weak interdepartmental interaction, etc. According to foreign experts, the new laws of 2024 provide for enhanced protection mechanisms, but have flaws in the form of a lack of real protection for women against domestic violence; domestic violence should be a separate criminal offense; lack of monitoring of the effectiveness of legislation. All these comments will certainly be corrected in the process of further legislative work, but in our opinion, in order to achieve "zero tolerance" for domestic violence, special attention should be paid to preventive measures, which is done in this work. The goals and objectives of the study. The purpose of the dissertation is a comprehensive study of the features of legal regulation, as well as additional administrative and legal ways to protect human rights against domestic violence, the implementation of which will increase the effectiveness of preventive measures to prevent such offenses. Based on this goal, the following tasks have been identified and solved: – the content of the concepts of "family domestic violence", "domestic violence" and "house violence" has been studied; – classification of family and household conflicts has been carried out; - the subject composition of family and household relations has been determined with an emphasis on weak categories of subjects; – the features of the "victim-criminal" relationship are revealed; – the activity of internal affairs bodies in countering offenses in the field of domestic violence has been studied; - the interdepartmental interaction of state institutions in the prevention of domestic violence has been studied; – the potential of public associations in countering domestic violence has been revealed; – international legal measures to prevent domestic violence have been studied; – recommendations have been developed to improve the activities of public associations in countering domestic violence. The methodological basis of the research was made up of general scientific (dialectical, structural-formal, formal-logical), interdisciplinary and special legal methods. The dissertation uses methods that allow a more complete and objective study of the problem of legal protection of human rights from domestic violence. The data analysis was based on statistical information from the Committee on Legal Statistics and Special Accounts of the Prosecutor General's Office of the Republic of Kazakhstan for 2019-2023. The novelty of the dissertation research lies in the fact that it provides a comprehensive theoretical and practical study of the features of administrative-legal regulation of the protection of human rights against domestic violence, taking into account recent changes in administrative and criminal legislation. The scientific novelty of this study is presented in the following main provisions submitted for protection: 1. In Kazakhstan, there is no unified approach to the use of the terms "family domestic violence", "domestic violence" or "house violence", which causes certain difficulties in law enforcement practice. This circumstance requires the development of a unified scientifically sound legal terminology that excludes an expanded understanding of articles devoted to this offense. "Domestic violence" should be understood as "systematic illegal actions designed to morally, physically and financially humiliate and restrict a relative, close friend or other person with whom cohabitation is conducted, as well as former spouses, roommates." 2. It is established that the content of "domestic relations" does not fully disclose the categories of persons subject to domestic violence, being limited to the concept of "spouses, former spouses, roommates, close relatives". Despite the fact that there are no statistics on gerontological violence and violence against inclusive family members in need of help, domestic violence occurs against them. In this regard, they should be considered a special category of people in need of assistance. For a more in-depth study of domestic violence, clear statistics are needed for each group of victims, which, in addition to women and girls, may be men, elderly parents, siblings, children (boys). 3. It is argued that the causes of domestic violence should be understood as all those causes, situations, problems and conflicts that serve to commit domestic violence. It does not matter whether they are caused by internal stimuli or are of an external nature. These include: alcohol dependence, drug addiction, low wages, low level of education, legal literacy, etc. 4. It has been established that legal ways to solve the problems of preventing domestic violence against family members play a special role, in particular legal norms, measures and methods aimed at reducing the dangerous situation that has arisen in the field of domestic violence. These include preventive measures, measures of social support for victims of domestic violence; the activities of institutions and organizations to prevent domestic violence and provide assistance to victims; the responsibility of officials for failing to take necessary measures to prevent and protect family members from violent attacks. This group also includes the promotion of social adaptation of persons who have committed offenses. 5. It has been established that Crisis Centers, as well as Family Support Centers working with victims of domestic violence, play a significant role in the prevention of domestic violence. It is necessary to develop standards defining their work, the quantitative ratio in cities, district centers, indicating the volume and types of services provided with the requirements for them and for employees. 6. Reliable statistical data collected from crisis centers and civil society institutions are important when working with victims of domestic violence and understanding the overall picture within the country in order to be able to use them in subsequent analysis for reliable scientific foresight and effective regulation of legal relations in this area. Today, the reality is that crisis centers keep independent statistics, since there are no uniform requirements for its registration. The solution to this problem is seen in the creation of unified forms of statistical reporting on applications to these centers. Along with this, the statistical data of crisis centers should be integrated into a single information base on offenses in the family and household sphere of the authorized body. Also, in order to identify the causes of domestic violence, it is necessary to create a Register of offenders in the family and household sphere. 7. Currently, problems arise in situations related to the intensification of harassment of persons by both strangers and acquaintances. We consider it necessary to introduce the article "Harassment" into the Code of the Republic of Kazakhstan "On Administrative Offenses" with the following content: "antisocial behavior that contains harassment, actions that cause feelings of threat, harassment manifested in various forms, including using the Internet, occurring systematically." We consider it necessary to supplement this article with part two: "the actions provided for in part one of this article committed against a person who is or was with the offender in family and domestic relations". 8. It is proved that the mass media have a certain coverage of all aspects of human relations with the surrounding society. At the same time, this information must necessarily meet the public interests for their normal development and functioning. Therefore, an urgent problem is the information field of the media, more precisely, what kind of social "coloring" this information spreads. In this regard, we consider it necessary to provide for administrative responsibility for the dissemination of a public call for reconciliation of persons domestic relations, who are known to television, radio, and video broadcasting about the finding of these persons in a difficult life situation related to domestic violence. 9. Due to the fact that the pilot project "Neighborhood Supervision" has yielded positive results in countering offenses, including domestic violence, we believe this project will be introduced everywhere on the territory of Kazakhstan on a permanent basis, which will serve to form public indifference to the offenses committed. 10. Provision of preventive measures should be carried out in a cyclical manner: school–university/university–psychological crisis centers for family assistance–public awareness. These measures will make it possible to affect all subjects of domestic violence: – introduce mandatory topics about domestic violence in school class hours with the participation of school district inspectors in order to competently explain the causes of offenses and their consequences; – conduct educational hours with students about domestic violence with the involvement of law enforcement agencies, psychologists, specialists from crisis centers; – to approve a single digital platform for a more rational approach to informing the public by the Family Support Center, local government and self-government, the Commissioner for Children's Rights, which will fully contribute to improving legal literacy of the population and the development of an active civic position of intolerance to domestic violence. 11. It is necessary to legislatively provide material support for the maintenance of a victim of domestic violence for the period of the investigation of the case and before the court makes a decision in the amount of the minimum wage established by the Law of the Republic of Kazakhstan "On the Republican Budget" at the time of the commission of the offense.