Opción, Año 33, No. 85 (2018): 187-216
ISSN 1012-1587 / ISSNe: 2477-9385
The aspects of legal regulation on staffing of procuratorial authorities of the Russian Federation and the Republic of Kazakhstan
Arman Mukanbetkaliyev
Ministry of Justice of the
Republic of Kazakhstan,
House of Ministries, Astana armanzko2015@mail.ru
SauleAmandykova
L.N. Gumilyov Eurasian National University,
Astana, Kazakhstan amandykova@mail.ru
YerzhanZhambayev
L.N. Gumilyov Eurasian National University,
Astana, Kazakhstan
Zhambaev_es@mail.ru
ZhanarDuskaziyeva
Kazakhstan University
of Innovative and Telecommunication Systems,
Uralsk, Kazakhstan
Asel36@mail.ru
AlidaAlimbetova
Turan University, Almaty, Kazakhstan
alimbetova_alida@mail.ru
Abstract
This article
considers the issues of improving the legal regulation of
the
staffing of procuratorial authorities of the Russian Federation and the
Republic of Kazakhstan
into
account the views of leading Russian lawyers, scientists
and materials practical activities
of state bodies. This article
discusses some aspects of the admission and service in bodies and organizations of Prosecutor’s office, such as requirements for individuals appointed to positions of prosecutors of the limitations, prohibitions and responsibilities connected with work in bodies and institutions of Prosecutor’s office, powers of appointment
and
dismissal procedure for certification of
public prosecutors.
Keywords: prosecutor’s office,
staffing,
legislation, public
federal
service, law-enforcement.
Recibido: 10-01-2018 Aceptado: 09-03-2018
Aspectos de
la reglamentación jurídica sobre
el personal de las autoridades de procuraduría
de la
Federación Rusa
y la República
de Kazajistán
Resumen
Este artículo considera algunas cuestiones
para mejorar la
regulación legal en la
dotación de personal de las autoridades de la fiscalía
de
la Federación
Rusa y la República de Kazajistán
considerando
las opiniones de los principales abogados rusos, científicos, y
actividades
prácticas con materiales de los órganos estatales. Se analizan algunos
aspectos de la admisión y el servicio en órganos y organizaciones
de
la Fiscalía, como los requisitos para personas designadas
para cargos de
fiscales
de las limitaciones,
prohibiciones
y
responsabilidades
relacionadas con
el trabajo en órganos e instituciones de la Fiscalía, poderes de designación y procedimiento de despido para la certificación
de
fiscales.
Palabras clave: fiscalía, dotación de personal, legislación, servicio
público federal, cumplimiento de la ley.
1.
INTRODUCTION
The Russian state, as well as the Republic of Kazakhstan, is
interested in
the
strong, independent,
effectively working
systems
of
bodies of the procuratorial authorities, capable to oppose to crimes and offenses in all areas. Public prosecutor’s
supervision, owing to its
universality, generality and efficiency, is intended to promote not only to strengthening of legality
in the
country,
but
also
to
increase in
the authority of law-enforcement
activity in the opinion of the population
(ALEXANDROV,
1999). The need of its existence is proved by today’s reality and it is accompanied by unsatisfactory work of the state control
bodies of both countries,
obliged to provide legality. Besides, the effective
prosecutor’s office, guarding bases of the political system and integrity of the state, is capable to provide the purposeful
reforms, directed to
improvement of quality of the population life. Together with it, productive performance of the functions, assigned to procuratorial
authorities of the Russian Federation and Kazakhstan, are impossible without the competent and professional organization of management at all levels of the specified
system. The modern calls, caused by many both external, and internal factors, demand increase in efficiency of the organization of all directions
of
public prosecutor’s activity, first of all due to improvement of staffing of the procuratorial
authorities, and more effective use
of an
organizational factor.
The suspense of many problems, connected with strengthening
of intra structural centralization of management, doesn’t allow to designate the
place of
managements of the
Prosecutor General’s Office
of the Russian Federation in federal districts in the system of the prosecution authorities and, therefore, doesn’t contribute to the development of the organizational interaction, necessary for achievement of the most effective
result of diversified activity the prosecutors.
Besides, current legislations
about prosecutor’s office of both countries, we believe, demand further improvement
in the sphere of the regulation
of questions on staffing and
intra organizational administrative activity (CARTER, 2004). Thus, the relevance of the theme
of
the present article is
caused by need of studying and the analysis of legal problems on the organization of management of
personnel process for procuratorial authorities of Russia and Kazakhstan,
their organizational
interaction with other state bodies (first of all - law
enforcement authorities).On the basis of stated there is a need for the
research of legal regulation of staffing of the procuratorial authorities of
Russia and Kazakhstan,
and also search of effective forms of the legal
mechanism for the administrative relations of the procuratorial authorities with their participants.
All this predetermined the choice of the theme, character and the
direction of our research, in which there is made the attempt to state own
vision of some administrative and legal aspects, connected with legal
regulation of staffing on the procuratorial authorities
of both countries. The extensive analytical
material was used, devoted to legal aspects of the organization and activity of the procuratorial authorities of Russia and
Kazakhstan, which is contained in works of the modern scientists.
2. METHODOLOGY
The methodological principles of this article were made by the system (accepted in jurisprudence) of
the principles of
knowledge of social
reality and
social and legal
institutes in their interrelation and
interconditionality.
The approved general scientific and special methods
are
widely used. The general scientific dialectic method gave the chance to consider the intra organizational
legal relationship, developing in the
procuratorial authorities, from the point of view of variability their regulation at each level of three-unit system, to prove merits and demerits of various approaches to the solution of the matter, to show change in the mechanism of regulation of these relations depending on set of the internal
and
external factors influencing it. Formal-legal methods: the description,
comparison, classification, the analysis
and synthesis allowed
to
characterize the mechanism of legal regulation of the intra organizational administrative relations from the position of their
concrete normative
content. Besides, thanks to these methods of scientific knowledge, it was succeeded to conduct the research of current legislation regarding its
compliance of real-life model the legal regulation
of
complete system
the
bodies, which are carrying
out
all-supervising functions,
to
reveal a number of legal gaps and to make suggestions on their elimination. The system and structural
method provided studying of the procuratorial authorities as system, gave the chance to reveal its basic elements, and to
show objectively existing interrelation between them (SIEVERS, 2002).
The comparative and legal method was used at determining structure and sequence of the process of management
development in the procuratorial authorities, by
comparison of
various
approaches to the organization of these or those activities of prosecutors, at comparing a
number of institutes of the administrative and labor law (for example, concerning passing of public service by the prosecutors and public servants, who are carrying out professional
activity in the prosecution
authorities) and also at studying components of staffing of management in the procuratorial authorities. The legal analysis of the Federal act “On the
Procurator’s office of
the Russian Federation”, and
the Law of
the Republic of Kazakhstan “On prosecutor’s office” were carried out and
also the logical and legal analysis of other legal acts were done.
For writing this article
the extensive analytical material was used, devoted to legal aspects of the organization
and
activity of the Russian’s and
Kazakhstan’s procuratorial authorities, which is contained in works of
modern scientists.
3.
RESULTS
Thus, we received the following results based on the analysis
of some aspects of legal regulation of staffing on the procuratorial authorities
of the Russian Federation and the Republic of Kazakhstan, in particular mentioning the questions of intra organizational administrative activity, the admission
order, service,
and interaction
of the procuratorial
authorities with higher education institutions:
1. In article 1 of the Federal act “On the Procurator’s office of the Russian Federation”, it is directly reflected that for ensuring rule
of law, unity and strengthening of legality, protection of the rights and freedoms of the person and citizen, and also protected by the law of
interests of society
and
state
–
the prosecutor’s office
of the
Russian Federation
carries out supervision
of respect for the rights
and
freedoms
of
the person and citizen, the federal executive authorities, Investigative Committee
of the Russian Federation, and
a set of other commercial and non-profit organizations; and it is
also given authority on coordination
of activities of law
enforcement
agencies for fight against crime. Certainly, the above
demonstrate that
the service in prosecutor’s office
has
specific signs, and it needs to be interpreted
as the special type of federal public law-enforcement
service, where we believe necessary to make changes
and additions to part 1 of article 40, the Act on
prosecutor’s office of Russia, having stated it in the following
edition: “1. The service in the bodies and organizations of
prosecutor’s office is
federal public law-enforcement service”,
and
further similarly under the text of the law.
2. In our opinion, the legislation on the prosecutor’s office, both in Russia and in Kazakhstan, unfairly allocates
and
isolates service in the bodies of the military prosecutor’s office of Russia and the main military prosecutor’s office of Kazakhstan
in relation to
service in the inter-city district prosecutor’s
offices, gives to it the
militarized character and, the most important, breaks the unity
and
integrity of the prosecution authorities, showed in article 1 and 4 of
the
Law On prosecutor’s
office of Russia and in paragraph 1 of
article 35 of the Law of the Republic of Kazakhstan “On prosecutor’s office”. We would like to bring the suggestion to reconsider the organizational-legal status of the bodies of the
military prosecutor’s
office of Russia and the main military
prosecutor’s office of Kazakhstan.
3. For the accomplishment of the basic principles of anti- corruption, namely publicity and transparency, system and complex use of anti-corruption
measures, priority application of measures for prevention of corruption, we believe expedient to provide and approve in the
Kazakhstan’s legislation the
list of diseases, interfering for admission in law-enforcement service of
the
Republic of Kazakhstan
or its service, as the conclusion of the military-medical commission about
eligibility or
ineligibility of this or that employee cannot always have objective character.
4. According
to the Prosecutor General’s Office of Russia during
the
period from
2002
to 2009, 3 897 persons were employed in
bodies of prosecutor’s office of the Russian Federation who were
directed for training
to target places, and it makes only
13% of the
total number of the employees who were admitted for service to the
procuratorial
authorities during the considered period. It
demonstrates that so far the
most part of
young employees of Russia prosecutor’s office is made by graduates of “no specialized”
higher education institutions of the country. In this regard, we consider necessary to note that the Russian State spends the considerable
sums from budget for the maintenance of higher
education
institutions at the Prosecutor General’s Office of Russia
which are obliged to complete fully with the necessary personnel
of
“employer”,
and
the entrants (potential future prosecutors) at admission
have to pass the strict selection in the conditions of the
high competition that it is hard to say about other higher education
institutions. So, we consider that it is very important to use this potential effectively, and HR departments of Prosecutor’s office of
Russia have to be concentrated
on the target training of specialists.
5. We consider expedient that it is necessary
for the Prosecutor General’s
Office of the Republic of Kazakhstan to strengthen interaction with profile higher education institutions of the country,
including by means of the conclusion of the contracts with them for training of specialists for creation of the effective mechanism
for improvement of vocational training quality and retraining of
personnel, where there will be no place of ordinary formality which often occurs in practice; at the same time, it is very important
to take part on the system basis in development of the national mandatory education standards, standard model education curricula.
These steps, eventually, will promote further
strengthening of close connection of practical and educational
activities, on the one hand the level of responsibility of
prosecutor’s office for training will increase, and with another - the
higher education institutions of the country will improve quality of
the
provided educational services.
4.
DISCUSSION
The questions of recruitment and placement of personnel in the
procuratorial authorities are
a
kernel not only all system of resource support for activity of the investigated departments, but also basis on which is based performance of the tasks for providing the rule of law in the country. The efficiency of implementation of supervising functions and also authority of prosecutors
in society depends from the level of the
organization
of work with cadre, use and education of the prosecutors. Considering the aspects, connected with effective administration in the studied system, we will note their close connection with activities for staffing of the public prosecutor’s structure by the persons, who are most meeting the qualifying standards to appointment
of
vacancies. This
activity, considering legislatively established subordination
of lower-level
prosecutors to their superiors, is directly administrative.
Therefore improvement of management in the system of the procuratorial authorities
directly depends on quality of personnel work and clearness of its organization.
The modern prosecutor’s
office is the specialized
public authority, possessing a wide range of
powers to ensure the
rule
of law
and restoration
of
the violated rights and freedoms of the person and citizen.
Realizing them in daily activity, the prosecutors are given special legal
status which connects them with public service. So regarding part 1 article
40 of the Federal Act “On Prosecutor’s office of the Russian Federation”, it is fixed that the service in bodies and the organizations of prosecutor’s office is federal public service. Prosecutorial
employees are federal civil servants performing duties on the post of the federal civil service, taking into account the requirements
of this Federal Act. The legal status and conditions of service of the public prosecutor’s workers are determined by the present Federal Act (SHTERIN and RICHARDSON, 1998). In turn article 48 of the Law of the Republic
of
Kazakhstan “On prosecutor’s office” establishes service in the procuratorial authorities – as a type of the
law-enforcement service which is carried out by prosecutors according to the Constitution, the present Law and other legislation. The order and
features of the order of service in the procuratorial authorities are determined by the Law of the Republic
of
Kazakhstan “The law-
enforcement service” (CSERES, et al., 2006).
Proceeding from these legislative provisions, it is possible to draw a conclusion that staffing in this department both Russia, and Kazakhstan is implementation of standards of the noted statutory act in relation to the
persons appointed to public prosecutor’s
positions. The specified norms
outline a circle of operation
of Laws on prosecutor’s office concerning operational structure, i.e. persons, directly work in supervising and other
measures. There is no direct indication of other officials (state civil servants) and citizens, performing work under an employment
contract in the analyzed Laws. In our opinion, in this case, the legislative
approach is quite understandable,
since it presupposes the division of the normative
regulation
of
official (labor) relations in relation to certain subjects.
Professional activity of the public civil servants (accountants, registrars,
experts, etc.) who are in the staff of prosecutor’s office of Russia is regulated
by the Federal law of July 27,
2004 #79-FA “On the public civil
service of the Russian Federation”,
labor activity of technical personnel (drivers, lifters, storekeepers,
electricians, etc.) is
carried
out in compliance with provisions
of the Labor Code of the Russian Federation. In Kazakhstan activity of support personnel is regulated by the Labor
Code of the Republic of Kazakhstan of November 23, 2015
#414-V LRK. We consider that it is necessary
in more detail to consider personnel
questions concerning the persons, involved in law enforcement for work organization of operational structure of the procuratorial authorities.
Scientific interpretation of essence of the public prosecutor’s and office
relations and, as a
result from
it, finding
of optimum ways
of improvement of personnel work assumes determination of the service
place in bodies, departments, institutions and the organizations
of prosecutor’s office in the system of public service. Consideration of this question is represented to us as very important,
as
far as it is closely
connected with a role of the prosecution authorities
in the system of public authorities of Russia and Kazakhstan, which predetermines
existence and
character of the intra organizational
relations in all links of the studied
system.
The stated above part 1 of article 40 of the Federal
Act
“On Prosecutor’s
office of the Russian Federation” refers professional activity of prosecutors to federal public service, without determining at the same time its functional accessory. The Federal law of May 27, 2003 #58-FA “On the system of public service of the Russian Federation” (MANNING
and
PARISON, 2004), regarding part 1
article 2,
establishes that the
system of public service includes the public civil service, military service and public service of other types. This normative
act
does not contain
any
references to the service in the organs and institutions of the Russia’s
prosecutor’s
office. In this case it is remarkable that the Constitutional
court of the Russian Federation in determination of May
12,
2003 #167-O (MANNING and PARISON, 2004) in the considered aspect stated the position very relevant today, according to which on the sense of article
129 of the Constitution of the Russian Federation and articles 1 and 40 of the Federal Act “On Prosecutor’s office of the Russian Federation” the
service in the procuratorial
authorities of the Russian Federation, making
the
integrated federal centralized system, represents
the special type of
federal public service; and the prosecutors
on behalf of the Russian Federation and for ensuring rule of law, unity and strengthening of the rule of law, protection of the rights and
freedoms of the person and citizen, protected by the law of society interests and state, carry
out
the supervision of observance of the Constitution of the Russian Federation and execution of laws, criminal prosecution
and coordination of activities
of law enforcement
agencies for fight against crime. It causes the right of the Legislator to establish the certain guarantees, corresponding
to the
status of the prosecutor.
Thus, the Constitutional Court of the Russian Federation, proceeding from mission of the procuratorial authorities in society and character of the tasks which are carried out by it, allocated public service
in supervisory authority in the special type and focused attention to its
law-enforcement contents. The Kazakhstan’s Legislator, in article
3 of the
Law of the Republic of Kazakhstan “The law-enforcement service”
referred to law
enforcement agencies, the
procuratorial authorities,
internal affairs, the anti-corruption service and service of economic
investigations which are carrying out the activity according to acts of the Republic of Kazakhstan (KEMBAYEV, 2012).
In jurisprudence
the question of criteria of reference of these or those bodies to law-enforcement is debatable. So, A.P. Kopylova notes that the idea of differentiation of federal public service on three types, put in the Law on system of public service,
assumes streamlining of functions of the rights and freedoms of citizens in all current state formations.
In view of scale of legislative work which needs to be carried out for these
purposes, and also reduction of departmental acts in strict compliance with
the
division established by the law, now determination of the circle of
departments, which are law-enforcement, is the difficult task (HOWE,
1938). L. Mälksoo speaks that the greatest complexity, both in the theory,
and
in practice is represented by differentiation of federal public civil
service and law-enforcement
specialized
activity as many of executive authorities are endowed with functions on protection
of life and health of
the citizens,
guaranteed
by the
Constitution
of Russia (MÄLKSOO,
2015). Agreeing with this position, we will note that the structure of the state
apparatus provides
existence
of law-enforcement mechanisms in each
sphere
of
public life, which activity not only is inherent in the nature
of
executive power and promotes implementation
of
provisions of the Basic Law, but also it is closely connected with
the embodiment in reality of the wide range purposes, which are put at the creation and functioning
of this or that department. At the same time the functional orientation
of public authority and legislative determination of service can be different
in it. For example, the Labor Code of the Russian Federation, in Article
354, establishes the activities of the Federal Labor Inspectorate, which, according
to article 356 of the Labor Code of the Russian Federation, carries out the federal state supervision
of observance of the labor
legislation and other regulations, containing standards of the labor law by
means of checks, issues of instructions, obligatory for execution, about
elimination of violations, drawing up protocols
on administrative offenses
within powers, preparation of other materials (documents) on involvement
of guilty persons for responsibility, according to federal laws and other regulations
of the Russian Federation, conducts according to
the
legislation of the Russian Federation hearing of cases about administrative offenses. The sense of the specified norm
testifies to the law-enforcement content of activity of the state work inspectors, which direct problem is
protection of labor rights of citizens. Together with it, the Provision on
Federal Service for Labor and Employment
determines the status of these officials as public civil servants (MÄLKSOO, 2008).
FRANCK (2012) points that the functional nature of activity of
executive authorities cannot be considered as criterion of division of the
public civil
and law-enforcement service, as continuous reforming of administrative
apparatus as at the federal, and regional level promotes double interpretation of the result of activity of the structures, vested with power over enforcement of legislative acts, as the unchanged phenomenon which we can observe – is the constant substitution of common goals and tasks
with private, connected with the solution of internal organizational issues and elimination of constantly coming up contradictions. The lack
of real result necessary for society from performance of law-enforcement
functions is lowered the authority
of the security services and creates an
aureole of declarative
nature of this kind activity.
Together with it, the author indicates the need of systematization of public service of Russia which can be promoted by adoption
of
the Federal Act “The Law-
enforcement Service”. At the same time FRANCK
(2012) has different opinion, according to which, adoption of the similar act will not solve the available problems, but also will strengthen delimitation of the public
authorities,
guarding
the rights of citizens. At the end of the way of legal
formation of the official status for the officials, it becomes clear that there
is a
need for the clear division
of
service in all departments into state civil
and
law enforcement by drawing up and fixing in appropriate
laws the
names of bodies, which on certain signs belong to law-enforcement. The similar step will cause many complaints
and
will create the basis for
shaking of administrative apparatus at the federal level. Besides, accurate systematization of bodies, in which the service can be recognized as law- enforcement, will demand increase in social and material guarantees for
the
persons, passing public service, and it, in turn, can negatively affect the rights and the interests of the public civil servants, appointed
on the
various positions in other authorities (FRANCK,
2012). EL Spektor and Yu P Rassadkin
suggests creating
the circle of government institutions in which service can be carried to law-enforcement,
on the basis of their power and compulsory impact on the persons neglecting the law. The researcher points to importance of the scientific analysis on functioning of
the
departments, possessing the wide range of functions on coercion to uniform performance of the law (SPEKTOR and RASSADKIN, 1971).
Recognizing validity of this judgment, we will note that breadth of coverage by law-enforcement
functions of the one body of the certain
sphere of the public life and its ability to reveal by own forces and means
of
the various violations of legality, to bring to justice, established by law, and to help prevent their further, is the system-forming factor, which can
be the basis for determination of service in this body as law-enforcement. In our opinion, federal public service in the Russian prosecutor’s
office completely
keeps within this framework. Reasoning this position, we will note the number of legislative provisions of the Russian Federation.
First, performance of the
state
function
by prosecutor’s office
on
implementation of supervision of strict observance of the law by all bodies of the public, municipal and public
administration, as well as all legal and natural persons (article 1 of the Federal Act “On Prosecutor’s office of the Russian Federation”)
assumes separation
of
this security agency among other bodies and its isolation as the integrated and centralized
law-
enforcement
system. It demonstrates about existence of certain features in
office activity of the public prosecutor’s workers, not inherent in other public servants. Secondly, the administrative-command form of
management of all links, which are the part of the procuratorial authorities system, is based on independence of prosecutors from other authorities. At
the
same time impact in any form on the employee of prosecutor’s office, with the purpose to influence the decision made by him or hindrance in
any
form of its activity, involves established
by
the law responsibility
(article 5). Thirdly, an arsenal of law-enforcement
measures of public
prosecutor’s
reaction where only prosecutors had the right to apply for identification
of
violations of legality, restoration the violated rights and
interests of citizens and acceptance of preventive measures (article 21-34).
Fourthly, the vesting of prosecutor’s office with powers on coordination of activities of the interested departments for fight against crime (article
8). The specified principles of law demonstrate
that the service in prosecutor’s office has the specific signs, caused by special functional
purpose of this body
in the state. So, it needs to be interpreted as
the special type of federal public law-enforcement service and to fix this provision in article 40 of the Act on Prosecutor’s office of Russia.
Having decided on the fundamental
aspects, connected with the place and role of the prosecutor-office
activity in the system of public
service, having important value for disclosure of numerous features on
staffing of the studied system of bodies, we will consider a ratio, concerning the standards of service of the Federal Act “On Prosecutor’s
office of the Russian Federation” and branch legislation. The legislation
on the system of public service is special in relation to labor legislation,
and therefore provisions of the last is
applied to regulation of the questions for passing
of federal public civil service of Russia in cases of their misrelating by the norms of the special. If the ratio of the Labor Code of the Russian Federation and the Federal Act “On Prosecutor’s Office of the Russian Federation” looks more or less transparent in this context, then it is not possible to interpret unambiguously the value of part 3 of article 40 of the Act On prosecutor’s
office of Russia according to which
the
order of service by military prosecutors
is regulated by the present Federal Act, the Federal Act “On the Military Conscription
and Military
Service Act” and the Federal Act “Status of Members of the Armed Forces”. The same picture emerges
in the Kazakh legislation, so in
paragraph 2) of Article 47 of the Law of the Republic of Kazakhstan “On the Prosecutor’s
office”, it is stipulated that the labor relations of the
servicemen of the Prosecutor’s Office are regulated by the Labor Code of
the
Republic of Kazakhstan and the Law of the Republic of Kazakhstan “On Military Service and Status of Servicemen”. The indication in these standards of the normative acts, regulating
of
the passing on military service, in fact, establishes their priority
in relation to the Law on
prosecutor’s
office of Russia and Kazakhstan, in view of the fact that the
status of the serviceman in compliance with article 2 of the Federal Act
“On the Status of the Military Personnel” and paragraph 1 of article 5 of
the
Law of the Republic of Kazakhstan “On military service and the status
of the military personnel” is primary in relation to the status of the public prosecutor’s worker, as it is got by the citizen
before taking service with
the bodies, investigated by us. We will note that article 1 of the Federal
law “On Prosecutor’s Office of the Russian Federation” and paragraph 1 of article 3 of the Law of the Republic of Kazakhstan
“On Prosecutor’s
Office” consolidates unity of the purpose and tasks of prosecutors at implementation of professional activity
, and
the section
V
of the Russian law and
chapter 7 of the
Kazakhstan legal act, establish the
general conditions
of passing the public prosecutor’s
service for all persons, and also the status, powers and guarantees of activity for the prosecutor,
so
in this case it is expedient to talk only about differences of employees of Russia’s military prosecutor’s office and the main military prosecutor’s office of the Republic of Kazakhstan, from the officials,
who are occupied in the general system
of prosecutor’s
office, expressed in
existence of military ranks and specialized social material support.
At the same time, considering provisions parts 2 and 3 of article 40
of
the Act “On Prosecutor’s office of the Russian Federation”, we will pay attention to their inconsistency
among themselves. As we had already
noted, part 2 of article 40 establishes subordination
in legal regulation of the office relations
of public prosecutor’s
workers: the labor relations of
employees of bodies and organizations of prosecutor’s office are regulated
by the legislation of the Russian Federation on Labor and the legislation
of the
Russian Federation On
public
service, taking into account the
features, provided by the present Federal Act. The indication on the Labor
Code of the Russian Federation is unreasonably absent in
relation to military prosecutors in part 3 of this article. The same inconsistency can be noted also between paragraphs 1) and 2) of article
47 of the Law of the Republic of Kazakhstan on prosecutor’s office. For example, in paragraph
1) of article 47 the Legislator governs the Labor relations of staff for
prosecutor’s office by the Labor Code of the Republic of Kazakhstan
and the Law of the Republic of Kazakhstan “On public service of the Republic
of Kazakhstan” with the features, provided by the Law of the Republic
of Kazakhstan “The law-enforcement
service”; whereas in paragraph 2) of
article 47 at legal work regulation of the military personnel of prosecutor’s
office the Legislator
uses only the Labor Code of the Republic of
Kazakhstan and the Law of the Republic of Kazakhstan “On Military
Service and the Status of the Military Personnel” and he does not refer any more to the Laws of the Republic of Kazakhstan “On the Public Service of the Republic of Kazakhstan” and “On The Law-enforcement Service”, that should be eliminated, according to our opinion (CARTER, 2004).
The similar legislative position of both countries, in our opinion, unfairly
allocates and isolates service in bodies of Russia’s military prosecutor’s office and the Kazakhstan’s Main Military public
prosecutor’s
office in relation to service in the inter-city district prosecutor's offices, gives it the militarized
character and breaks the unity of public prosecutor’s department, reflected in article 1 and 4 of the Law On prosecutor’s office of Russia and in paragraph 1 of article 35 of the Law of the Republic of Kazakhstan
On prosecutor’s office. The analyzed Russian’s Law contains the open list of the special legislation which can be applied to employees of bodies
and institutions
of Russia’s
prosecutor’s office. In view of this, it is possible to amend the legal norms, devoted to separate aspects of service of the public prosecutor’s workers and bringing them in line with government regulations,
aimed at improving the state apparatus. For example, the Federal law of December
25, 2008 #280-FA article 40-2 of the Federal Act “On Prosecutor’s office of
the Russian
Federation”
is
supplemented with the provision,
in
accordance with which, the officials of the procuratorial
authorities have
the restrictions, bans
and
duties,
established by the
Federal Act “On counteraction of corruption”. At
the
same time, norms of the special
legislation cannot
and should not have the dominant position in regulation of
separate aspects of prosecutors service in relation to
the Law On prosecutor’s office, as the purpose of inclusion the references to them in
the
considered statutory
act
consists in need of carrying out the organization of passing service in the prosecutor’s
office in compliance
with dynamically developing democratic directions in office activity of
the
officials of executive authorities. Systematic implementation
of the
special laws is possible without introduction of the order and conditions of their corresponding execution, which is carried out at the level of the Prosecutor General of the Russian Federation. So, for example, the Order of the Prosecutor General’s Office of the Russian Federation of March 25,
2010 #126 “About the adoption of the provision
on the procedure for
submission of information on incomes, property and liabilities of property nature in the bodies and institutions of the Prosecutor's Office of the Russian Federation”
is devoted to practical aspects of execution of
requirements on the anti-corruption
legislation of the procuratorial
authorities system.
The main norms, devoted to the organization of personnel work
and
passing of service in the studied department,
are
concentrated in the Act on Prosecutor’s office of Russia and Laws of the Republic of
Kazakhstan “On prosecutor’s office” and “The law-enforcement service”. There are included: procedures of employment, appointment
to higher positions, certifications, encouragement,
disciplinary responsibility, dismissal of public prosecutor’s workers and also the social guarantees,
provided to them by the state. Regarding
1 article 40-1 of the Law of Russia it is noted that the prosecutors can be the citizens of the Russian Federation, having the higher legal education got in educational institution of higher education, having the state accreditation, and possessing
the
necessary professional moral qualities, capable of fulfilling the official duties assigned to them according to their health. These conditions
designate general requirements for persons wishing to enter the service of
the
supervisory authority; moreover, Part 2 of Article 40-1 establishes the number of restrictions for applicants for this vacant position. They are: the presence of citizenship of the foreign country, criminal record, the close
relationship, a disease incompatible with execution of functions, and the
judgments
about recognition of the person incapacitated
concern them or
the
refusal to undergo the procedure
for admission to information constituting the state secret. The Kazakhstan’s law on prosecutor’s office
in article 48 determines by the Law of the Republic of Kazakhstan “The
law-enforcement service” the order and features of the order on passing service in the procuratorial authorities, where articles 6, 7 and 8 prescribe
the
conditions for admission, the selection of candidates and admission
to the law enforcement service, in particular Article 6, paragraphs 2, 3, 4 and
5 of the last law determine the restrictions and determine the conditions for admission to the law enforcement service to the procuratorial
authorities. These restrictions also interfere with further passing by the
citizen of public service in prosecutor’s
office. Their legal fixing is
intended
to
promote attraction
in
prosecutor’s
office of
the persons, having high moral, strong-willed and ethical characteristics
of
the personality, capable
due
to
a
state of
health to bear the
increased
workload, connected with non-standard working days. However, actually
it is
quite difficult for personnel divisions to check compliance of
applicants to these requirements. First, it is not resolved the question
about diseases, interfering service in the procuratorial
authorities
in legal relations. Now it is determined only
the
List of the diseases, interfering admission to the public civil service of the Russian Federation
or
its passing (it was approved by the order
of
the Ministry of Health and Social
Development of the Russian Federation from
December
14,
2009 #984n).
In
this regard, it is not clear, whether this normative act can be applied to public prosecutor’s workers whole or in part.
Besides, there is one more condition which is formally
interfering
admission to service and is not reflected in provisions of the specified article. In compliance with the point “b” in part 1 of article 43 of the Law On Prosecutor’s office of Russia, the public prosecutor’s worker can be dismissed at the initiative of the head of body or the organization
of prosecutor’s office in case of violation of the Oath of the prosecutor, and
also commission of the offenses discrediting honor of the public prosecutor’s worker. According to article 40-4 of the Federal Act “On Prosecutor’s
office of the Russian Federation”, violation of the Oath is
incompatible with further stay in the procuratorial authorities, therefore
the
persons cannot be employed in supervising departments who were
earlier working in the procuratorial authorities and dismissed for violation
of the Oath. We called this basis formal for the following
reasons.
Dismissal of the public prosecutor’s worker under any circumstances will be carried out in compliance with requirements
of the Labor Code of the Russian Federation. In point 16 of the Rules of keep and retain of the labor record books, production of forms of the labor record book and providing employers by them, it is fixed that there is made the record in
the
labor record book about dismissal at cancellation of the employment
contract at the initiative of the employer (termination
of
the employment
contract) with reference to the corresponding paragraph of article 81 of the
Labor Code of the Russian Federation. In this norm there is no such basis of
cancellation of the employment
contract at the
initiative of
the
employer as violation of the Oath by prosecutor (investigator). So, as a
rule,
it
is made the
record in the labor
record
book of the
person, dismissed for commission of the offenses, discrediting honor and dignity
of the public prosecutor’s worker, with the indication
on paragraph 14 of
article 81 of the Labor Code of the Russian
Federation (other cases). Also
commission by the public prosecutor’s worker
of the actions,
contradicting provisions of the Oath, can be regarded in some cases by the management of personnel
divisions of prosecutor’s offices of federal entities as violation of labor discipline and other related normative acts,
which is
unambiguously difficult
for
correlating to any paragraph of
article 81 of the Labor Code of the Russian Federation. It is not possible to HR and other departments to provide direct and exhaustive proofs (in
certain cases) in view of their faults, which expose the public prosecutor’s worker in commission of offense not compatible to his further stay in
bodies of prosecutor’s office. Taking into account these circumstances,
this person,
as a
rule, in an imperative
form is asked to write a letter of resignation at his own request on the basis of Article 80 of the Labor Code of the Russian Federation.
Thus, the persons, dismissed on the basis of the articles of the
Labor Code of the Russian Federation
noted above, have no obstacles
(formally) at the next employment
in the procuratorial authorities. In this
case
primary activity
on conducting
necessary checks and
making decision on appointment of these applicants for vacant
public prosecutor’s
positions lays down on shoulders of personnel divisions. They require and
study the personal records, containing data on passing of service, in which there cannot be appeared
the
exhaustive data on unworthy behavior of the citizen
or these data can be interpreted
in other context later. The specified
norm cannot differentiate persons, requested for employment in bodies
and
institutions of prosecutor’s office for the first time or repeatedly, as it is established in the part 4 article 32 of the Constitution of Russia that citizens of the Russian Federation have equal access to public service. Therefore only competent and professional work of personnel departments
(managements) in prosecutor’s offices of federal entities and prosecutor’s offices,
equated
to
them, can
promote high-quality selection
of the
persons, worthy to be prosecutors of Russia. The “specialization”
of
the legal education is very important in solving the problem of selecting worthy personnel for
operational positions. It is known that now the prosecutor’s office has opportunities of target training of the specialists.
The corresponding institutional structure was formed by a Decree of the Government
of the Russian Federation
of July 8, 1996 #787 “On creation
of
the institutes of prosecutor’s office of the Russian Federation as a part of the Moscow State Law Academy, the Saratov State Law Academy and the Ural State
Law Academy”. The
Prosecutor General’s Office of Russia,
in pursuance of this normative act, signed the contracts, providing
the target training of specialists of the legal specialization
and
their employment in the procuratorial authorities with the listed academies. Besides, now the
specialists
are trained in
the prosecutor’s office in
Moscow’s, St. Petersburg’s and Irkutsk’s Law Institutes
of the Prosecutor
General’s Office Academy, and also it is on the basis of contracts in the number of others higher educational institutions
of the legal profile. According
to
the data
of the Prosecutor General’s
Office of
Russia,
between 2002 and 2009, more than 30,280 employees were recruited into
the
service of the Russian authorities, which were considered
by us (with the exception of transfers from other prosecutors
and
other law enforcement agencies). During this time 17213 persons were
recommended
for target places, from which 4 846 entrants were admitted
to the organizations, including to the Institutes of prosecutor’s office –
2413. So, 3897 persons were admitted for work in the procuratorial
authorities from earlier directed to study as target places, that makes only
13% of the total number of the employees, who admitted for service to the
procuratorial authorities during the considered period. Thus, so far the
most part of young employees of prosecutor’s office of Russia is made by graduates of “non-core” higher education institutions of the country.
It was adopted the Decree of the President of the Republic
of Kazakhstan of May
4, 2015
#15 about creation of the
Kazakhstan’s Academy of Law Enforcement Agencies
at
the Prosecutor General’s
Office of the Republic of Kazakhstan, with assignment of the special
status of the education organization, where the main activities were
determined the following
directions:
increase in professional
level of the law enforcement
officers, including their consisting in the Presidential reserve of law
enforcement officials
of the Republic of Kazakhstan; coordination and carrying out of the interdepartmental scientific research
in the sphere of law-enforcement activity; implementation of the programs
on postgraduate education. At the same time, as it is noted in the Concept
of
personnel policy of law enforcement
agencies of the Republic of Kazakhstan, approved by the Decree of the President of the Republic of Kazakhstan
of
December 31, 2013 #720, despite obvious need, the
undertaken initiatives
on reforming
of the
separate aspects
of law-
enforcement system
do
not give the expected effect. Facing the low
administrative level, unwillingness of introduction the innovations and changes of the habitual state of affairs, ultimately, the begun
transformations reduced to various structural transformations without essential change of quality and effectiveness of the work.
At the present time there is a number of the current problems peculiar to law-enforcement structures: 1) lack
of accurate system of
planning and placement of personnel, randomness and disorder of the staff
movements (on average each 2 years the employee
changes the working
place); 2) poor quality of studying of candidates for service, staffing with incompetent personnel (every tenth young employee leaves the bodies within the first
year of service, from them every fourth for negative motives); 3) lack of accurate criteria for evaluation of working results of the employee that entails the formalism
of
attestation, low motivation,
protectionism in the promotion of personnel (according to the results of the extraordinary attestation, one third on the top level management of law
enforcement
agencies was updated); 4) superficial approach to vocational and physical training of employees, the stereotyped nature of advanced training (only every fourth division is equipped with educational and
material resources
for carrying
out
office and physical training of
employees);
5) ineffective organizational and staff work, duplication
of functions, mechanical
increase in the number of staff without taking into
account the actual workload (for the last 3 years in law enforcement agencies there are carried out more than hundred organizational
and
staff reorganizations, while the number of staff members has remained
unchanged);
6)
insufficient educational work, growth of negative
tendencies among employees (for the last 3 years 1591 criminal cases
were initiated against law enforcement officers and this figure is increased annually).
Today it is necessary to increase high-quality improvement of activity for the law enforcement
agencies by system change of human
resource
management, introduction of effective personnel policy. The purpose of personnel policy is formation of the highly professional
personnel structure, capable to solve competently
the
problems of law
enforcement
agencies. There are put forward the number of tasks for achievement of the specified purpose, and they are: introduction of
effective methods on planning and staffing competent and morally
stable
personnel, ensuring transparency and objectivity of selection processes,
attestation, placement of personnel; modernization
of
the departmental
system of training and retraining of personnel, the introduction
of the systematic approach to increasing professionalism throughout the service
[26]. Taking into account the data given above for creation of the effective mechanism on improvement of quality on vocational training and
retraining
of
personnel, we consider expedient that the Prosecutor
General’s Office of the Republic of Kazakhstan needs to strengthen interaction with profile higher education institutions of the country, including by means of the conclusion of contracts with them for training of the specialists, without reducing
it to ordinary formality, as it often occurs in practice; at
the same time based on the norms of article 45-1 of
Law of the Republic of Kazakhstan
“On education” which provisions provide the social partnership in the field of professional
education, focused on increase in results of activity
of
the education
system,
achievement of the level of personnel training, taking into account the needs of
economic sectors
and employers, strengthening the
links of
training with production, including by introduction
of dual training. The main directions of interaction
for partners in the field of professional education, according
to the Law On education
along with others, is participation of the employers in development of the national mandatory education standards, standard model education curricula and programs; the organization of professional practice for students, who are trained with use of technological
base
of enterprises, internships for the teachers of special disciplines and specialists.
5. CONCLUSION
The criterion of "sovereignty", although in the long period in its home country, France had a great deal of influence, but was largely ousted in
the late nineteenth century due to supremacy and controversy, or to a large extent moderated in parallel with other criteria. The given results, obtained during the conducted research in scales of the present article,
allow drawing the conclusion
on
existence of problems in the legal organization of management which was developed in the procuratorial
authorities of Russia and Kazakhstan. At the same time except the features
investigated above on service in the system of prosecutor’s office, it is
different from service in other public authorities in
the specific legal and organizational bases, connected with its financial support, therefore, in our opinion this issue requires further studying and understanding.
It
is represented that the received author’s results on the one hand can expand
borders of scientific knowledge of this area, will promote improvement of organizational legal status of public prosecutor’s department, with another
– to serve
as
a
starting
point
for
further
studying
of the
specified
problematic. It was established
that the procuratorial
bodies did
not
receive any complaint
about threats of the use of torture against Aleksei
Sokolov. We believe, it is also necessary in the Kazakhstan legislation to
provide and approve the similar list of diseases in the order
established by
the
legislation, as the
conclusion of
the military medical commission cannot be always objective. Secondly, the analysis of the Code of ethics for the public prosecutor’s worker of the Russian Federation and
the Concept of educational work in the system of prosecutor’s office of the
Russian Federation and
also the
Code
of honour
for
the staff
of
prosecutors office of the Republic of Kazakhstan,
allows to draw the
conclusion that these departmental acts work in the relation of the persons,
who are already appointed
to
positions in
the inter-city district
prosecutor’s
offices and they do not treat the citizens undergoing
the
procedure of employment in the considered bodies.
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