Aliya М. SERALIYEVA
Candidate of Juridical Sciences, Associate Professor, (Abai Kazakh National Pedagogical University), Kazakhstan
ORCID iD: orcid.org/0000-0002-3786-8757
ID: 57188492400
Yernar BEGALIYEV
D.Sc. in Law, Professor (Academy of Law Enforcement Agencies under the General Prosecutor Office of the Republic of Kazakhstan), Kazakhstan
ORCID iD: orcid.org/0000-0001-6659-8576
eLibrary ID: 43977648
Aigerim А. ZHIENGALIEVA
Doctoral student, M.S. (Law), Police Major, (Almaty Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after Makan Esbulatov) Kazakhstan
aigerimzhiengali@mail.kz
UDC 340
DOI 10.31733/2786-491X-2022-2-170-176
Keywords: provocation, legal provocation; illegal provocation; provocateur, instigator, incitement; crime, counteraction, criminal liability, operational investigative activity.
Abstract. This article reflects one of the most difficult problems in modern criminal legislation and society, namely the provocation of crimes. It was the provocations of crimes organized by law enforcement officers or with their participation, as the most dangerous and unacceptable in law enforcement practice, that came to the attention of our study.
To date, a comprehensive study of provocative activity has not been conducted in the doctrine of criminal law. The very concept of provocation remains debatable, there is no common understanding of its signs, victimological aspects of countering provocative activity have not been studied, and the question of the degree of public danger of both this activity as a whole and its individual types has not been resolved.
The problem of assessing the provocation of a crime is complicated by the fact that the theory of criminal law clearly does not sufficiently investigate the question of the essence of the actions of a person provoking the perpetration of a crime. The definition of the nature of the criminal legal norm on the provocation of a bribe directly depends on the decision about the relationship of this act with the institution of complicity, in particular, with incitement to commit a crime.
For completeness of the study, the authors refer to the legislation of the Republic of Kazakhstan on the provocation of a crime, in which the position of the state is most accurately formulated. In particular, article 412-1, “Provocation of a crime”, of the Criminal code of the Republic of Kazakhstan is investigated. The Criminal Code was supplemented by Article 412-1 in accordance with the Law of the Republic of Kazakhstan dated 06.10.20 No. 365-VI. The issue of mitigating the punishment of a person who committed a crime as a result of being provoked, as well as the provoking role of the victim in the crime committed, remains relevant today.
References
Akimzhanov, T., Rakhimova, G., Kuanaliyeva, G., Abrakhmanov, B., Shamova, А. & Zayed, N. (2021). Innovation of structuring the criminal policy as independent section of the new conception of legal policy of the Republic of Kazakhstan. Journal of Legal, Ethical and Regulatory Issues. 24(4). URL : https://www.abacademies.org/ articles/Innovation-ofstructuring-the-criminal-policy-1544-0044-24-5-683.pdf.
Berdaliyeva, A., Kim, A., Seraliyeva, A., Gassanov, A. & Dunentayev, M. (2021). Criminological measures to counteract corruption offences in the field of illegal gambling. Journal of Financial Crime. Publisher: Emerald Group Holdings Ltd. Doi : 10.1108/JFC-11-2021-0246.
Criminal Code of the Republic of Kazakhstan, dated 3.06.2014, no. 226-V (with amendments and add. comp. on 02.07.2021). Help system “Lawyer” URL : https://online.zakon.kz/Document/ ?doc_id=31575252&doc_id2=31575252#pos=290;-125&pos2=5906;-45.
Dudarenko, V. (2017). The legal nature of provocation of a crime in criminal law. State Law University, p. 65.
Govorukhina, E. (2002). The concept and legal consequences of provocation in criminal law. Dis. ... kand. jurid. sciences': 12.00.08: Rostov, 176 p. RGB OD, 61:03-12/520-3. URL : http://www.lib.ua-u.net/diss/cont/96661.html
Marchuk, V. The ratio of staging a bribe, provocation and operational experiment. URL : https://elib.bsu.by/bitstream/123456789/102626/1/378-381.pdf.
Metelsky, P. (2006). Criminal and legal characteristics of provocation of a bribe or commercial bribery. Bulletin of the NSU. Series: Law, vol. 2, issue 2, pp. 115–124.
Nam, G. Bribe or provocation of a bribe. URL : https://online.zakon.kz/Document/?doc_id=30924144&pos=6;-108#pos=6;-108
Radachinsky, S. (2011). Provocation of crime as a complex institute of criminal law: problems of theory and practice. Nizhny Novgorod Academy of the Ministry of Internal Affairs of the Russian Federation. Novgorod, p. 52.
Tikhomirov, L. (1998). Legal encyclopedia. L. Tikhomirov, M. Tikhomirov. Uriformat, 526 p.
Vaal, T. (2020). Criminal liability for provocations by law enforcement officers was fixed by the Majilis, 3.06.2020. URL : https://vlast.kz/novosti.
Volzhenkin, B. (2005). Office of crime: a review of legislation and judicial practice, 560 p.