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§ 1. Concept of punishment and value of its purposes of criminal liability realisation in Somalia.

All over the world the persons who have made illegal acts, according to the law, come under to the responsibility realised in its this or that form.

At a statement of a material we do not stop on discussion about concept of forms of realisation of the criminal liability and its kinds, and we start with their definition of data in §1первой the head of definition of the criminal liability as the criminal law based on norms following from the fact of fulfilment of infringement or a crime, preterpevanija the person recognised in it guilty deprivation or restrictions of the rights and freedom of this person. The volume preterpevanija is reflected by the person of deprivation, or restrictions of its rights and freedom in the sanction of article of special part UK Somalia, differently in penal terms, or in separate norms of its General part (other forms of realisation of the criminal liability in Somalia - security measures) [81] and in these limits is established to the concrete person.

We consider forms of realisation of the criminal liability, how the most part of criminally-legal influence. In the theory of the Russian right as criminally-legal influence understand «set of ways of criminally-legal expression of the state compulsion in reply to socially dangerous act forbidden by the criminal law» [82]. In Somalia criminally-legal influence can be carried out and concerning the person only inclined, in opinion of court to fulfilment

The act forbidden by the law and recognised dangerous to a society. To such persons the security measures, containing in UK Somalia also are applied. But they are not forms of realisation of the criminal liability in such cases.

The most natural and widespread form of realisation of the criminal liability is punishment. Professor I.M.Ragimov has accurately noticed, that in «all areas of criminal law there is no other concept which at least approximately could be made even to concept of punishment of its cultural-historical and philosophical value... In punishment individuality of the people, its thought and feeling, its calmness and passions, development affects...nakazanie appears at all people and at all times with the first rudiments of the organised hostel. And process of formation of idea of punishment at all people is almost identical, behind some insignificant differences». [83] But for what the state in the name of its bodies on behalf of the people punishes the person for bad behaviour? How the society defines, what kind of punishment, or other compulsion approaches the concrete person? And in general who should be exposed to a measure of the state compulsion in general and to punishment in particular? What kind, the size of punishment, or other form of realisation of the criminal liability, and for what purpose they will be appointed? Answers to these and other questions will be considered in this chapter.

To understand a punishment role as the basic form of realisation of the criminal liability in struggle against punishable acts it is possible, considering set of these acts, as the complete social phenomenon. Omittance of such acts, or level of relapse among the persons who have violated the law, appreciably characterises efficiency of forms of realisation

The criminal liability from the point of view of their role in criminality restraint.

Punishment always was the tool in hands of the authorities believing, that its influence is capable to be means of struggle against the persons making objectionable acts for a society.

It is noticed, that than above a crime rate in the state, especially strict measures are applied to persons, its generating. In crime control it is important to understand, what not the concrete crime, or other act should be the basis for punishment application, or other forms of realisation of the criminal liability, and danger of the person, its made. Certainly, appreciably degree of danger of the person is defined by character and degree of danger of act, it made. And still, after sodejannogo which the relation of the person to result of the act, the victim, or its relatives could be made and under the influence of other persons, sincere the repentance accompanied by actions on compensation of a material damage, rendering of assistance to law enforcement bodies and other circumstances form the basis of a choice of a measure of realisation of the criminal liability.

Our position is that, that the punishment purposes (a choice of the form of realisation) responsibility at their appointment pertinently to consider with reference to concrete persons. On one effect can render the fact of their exposure and punishment as unique means of expiation of fault, for others - even the most strict punishment will influence inducing to fulfilment of new crimes.

Punishment, as well as any other form of realisation of the criminal liability, in any society plays only an auxiliary role in crime control. The basic measures in struggle against this social phenomenon measures of social and economic character, level of morals and erudition of the population urged to play. Today in Somalia and

Low level of a social and economic condition, and level of morals of Somalis, and level of erudition of the population.

In Somalia from 2014 on 2015гг. It has been made 2960 ugolovnonakazuemyh acts to 2165 persons punishment in the form of imprisonment has been appointed. Among them persons, before committing crimes - approximately 7 %. It is possible to carry theft, swindle, infringement of parental duties and causing of a heavy property damage To number of most often made crimes (item 480 item, 496, 430, 491 UK Somalia) [84]

In the modern criminal legislation of the majority of the countries there is no universal fixing a sentence and its purposes. Somalia concerns such countries, in UK which also, (in item 90) similarly UK Italy, only exhaustive list of the punishments which are coming under to reflexion in sanctions of corresponding articles of its special part is established. On their generalisation it is possible to judge an estimation the legislator of degree of the social danger of act and about the purpose of the general prevention, and on punishment application to the concrete person - about the purpose of private prevention. In turn definition of a priority of the purpose of punishment at definition of the form of realisation of responsibility depends on a policy of the state in crime control sphere at a concrete historical stage of its development. In Somalia today the policy in crime control sphere should be rigid, but in reasonable limits.

It is necessary to notice, that, despite the importance of concepts "punishment", «the punishment purposes» for the decision of questions of realisation of the criminal liability, the Somali lawyers give to them of unfairly few attention. They consider it self-evident. However selective interrogation of practising lawyers in Somalia has revealed the identical approach to fixing a sentence and its purposes. So, according to 89 % interrogated (judges, public prosecutors, police, workers in penitantiary establishments

And lawyers), punishment is «putting on on the criminal of severe tests or loss of the rights as consequence of the illegal act made by it recognised as the law as a crime». They give great value of the precautionary purpose of punishment.

Jurists of Somalia fix sentence on similarity of jurists of Italy. In the criminally-legal doctrine of Italy definition of concept of punishment difficult enough also does not differ uniformity in approaches to its signs. One authors identify punishment with concept of the criminal liability, others display it on components - a penalty, causing of a pain, sufferings, etc. So, for example, G.Iannarone, L.D Angiolella, N.Russo consider, that «Punishment represent a penalty for

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Angrily made by the offender ». [85]

According to opinion of Italian lawyer A.Paljaro, «punishment is reaction to the committed crime». [86] In other earlier work he has expressed concerning necessity of punishments as society protection frames. This scientist has noted: «Voluntary observance of rules of a hostel by all members of a society will deprive punishment of sense of life for this society». [87]

In criminal law of developing countries the concept of punishment also accurately is not defined and reduced to aforementioned definitions. Apparently from different definitions unanimity of jurists, their stating, is shown that all authors recognise as punishment a certain reaction of the state to offences.

In our opinion, resulted above fixing a sentence do not allocate signs inherent in it, the maintenance and the appointment purposes that does not allow to distinguish it from other forms of realisation of the criminal liability.

The punishment maintenance is represented, that, consists in causing to the offender proportional, how much it is possible and is admissible, harms of deprivation of its certain blessings (the rights, freedom), that is in a penalty (tests). The Koran as Islam basis learns to simple true: the good comprises the award, and angrily - punishment.

Once again we will notice, that all forms of realisation of the criminal liability (a security measure, conditional stay of execution of punishment, etc.) as compulsion, are connected with certain deprivations, infringement of the rights, freedom and interests of the guilty. The volume of these infringements depends on qualitative and quantitative indicators of a kind of the forced measure appointed to the person. Quality indicators are reflected in the maintenance of punishment or a security measure applied to the guilty person. Quantity indicators are specified in the sanction of articles of the special part of the criminal law and in these frameworks are appointed to the concrete person. Reflexion of a kind and the size of punishment in sanctions of articles of the special part of the criminal law - one of discriminating its (punishment) of signs; security measures, conditional stay of execution of punishment do not contain in sanctions of articles of special part UK, their maintenance and application terms are specified in norms of its general part.

Unlike criminal liability institute in the legal literature of the majority of the countries theoretical problems of punishment under criminal law are in details developed. They full enough also are comprehensively reflected in textbooks on the criminal law, special monographies. However in Somalia such special works are not present, owing to what we will be based in approaches to punishment on the theory of other countries.

We support a position of professor I.M.Ragimova that «punishment is useful if it is capable to eliminate any bolshee angrily, than it. Hence, it is useless in that, a case if, for example, by long imprisonment we aspire to prevent the harm which economic value is insignificant». [88]

In UK the Russian Federation punishment is defined, how the measure of the state compulsion appointed on a sentence vessels which is applied to the person recognised guilty of committing a crime, and consists in statutory deprivation or restriction of the rights and freedom of this person (ch. 1 items 43). Century To Dujunov, proceeding from data in the fixing a sentence law, treats it, as the form of realisation of a penalty - the state condemnation of a crime and its person made. [89]

In the doctrine of criminal law of the developing states which Somalia concerns also, the most widespread is the approach to fixing a sentence, as to a penalty for the done harm.

In the modern criminally-legal theory of Somalia there are no differences in principle of concept of punishment. It is necessary to notice, that the Somali criminal legislation adheres so-called dualisticheskoj to system of realisation of the criminal liability, namely application to the person who has made punishable act of punishment or security measures, or this or that together.

In the doctrine of the Somali criminal law have analogues many, criminally-legal institutes not only Italy, but also Germany. In German, also, as well as in the Italian criminal law there is no legislative definition of concept of punishment. However, in the theory criminal the right of Germany it is possible to find out various fixings a sentence. According to B.D.Meyer «Punishment comprises sufferings compulsorily assigned to the subject and as consequence, following of necessary previous guilty reproach, a public is social-ethical negative estimation is guilty perfect act». [90] Scientist explains, that causing of sufferings (nevygod, deprivations) can have various character depending on a crime kind, but is always defined standard. Thus, even in cases when the person also does not perceive punishment as deprivation, this imperception does not cancel noted property of punishment. Socially-ethical negative estimation has symbolical value and without it the first component of punishment does not work. [91]

The most widespread in the Norwegian criminal law is the fixing a sentence given by Norwegian criminalist Andenes Ioganesom: «punishment is angrily, which state causes

To the criminal, owing to an offence on purpose, that he should feel as angrily ». [92] It is necessary to notice, that this definition is quoted from approval of the Supreme Court of Norway. [93]

From resulted above fixings a sentence, it is possible to draw a conclusion that it is a penalty which the criminal has deserved. However it is necessary to notice, that foreign authors unlike the Russian colleagues do an emphasis on a penalty as requital for perfect harm. According to some lawyers, the punishment essence consists in causing guilty "be ill". So N.Kristi's Norwegian scientists, [94] Andenes Ioganes [95] write: «Awarding punishment according to legal establishments means causing of a pain and is intended for this purpose».

In the manual devoted to criminal law of developing countries: punishment is defined as the measure of the state compulsion appointed court concerning the person recognised guilty of committing a crime and expressed in causing to it of certain deprivations, provided by operating criminal law. [96] and it is valid, a quality indicator of any form of realisation of the criminal liability, and punishment - in bolshej degree, «necessity to undergo condemned opredellyonnye restrictions, burdens, sufferings in the course of its execution is put objectively in pawn». [97]

The criminal liability is realised for definite purposes. The punishment purposes can be carried to its number sistemoobrazujushchih characteristics, «they influence construction and an orientation of many legal institutions (for example, awarding punishment, clearing of enduring the punishment) and character of sanctions criminally-rules of law. So, in ch. 1 item 60 of the Russian Federation is offered:« More strict kind of punishment from among the crimes provided for fulfilment is appointed only in case less strict kind of punishment cannot provide achievement of the purposes of punishment ». The punishment purposes are defined by the state criminal policy: formulating the purposes, the legislator shows, what desirable end result aspires to reach the state, applying punishment under criminal law for committed crimes. The question on the purposes is closely connected with a problem of efficiency criminal punishment, and criminal law as a whole». [98]

As the punishment purposes are not reflected in UK Somalia so far as it is possible to judge them on construction of the system of penalties, to their reflexion in sanctions of articles of special part UK Somalia for concrete crimes and to destination to their concrete person. Absence in the legislation of the purposes of punishment can to result and quite often leads unjustified raznoboju in appointment of punishments for the identical crimes made under similar circumstances and at similar data about the person of the guilty.

In the Somali criminal code the principle of construction of the system of penalties «from more strict to less strict» (item 90 UK Somalia) is used. The majority of sanctions of norms of Special part UK Somalia - alternative and rather defined, however UK Somalia uses also absolutely certain sanctions. So, in item 434 UK Somalia providing responsibility for murder, the sanction in the form of a death penalty without any alternative is established.

The death penalty is the most strict punishment in the system of penalties of Somalia. Its maintenance consists in deprivation of the person of the right to life in what its retaliatory essence is shown. A penalty, in our opinion, and it has been reflected above, forms the maintenance of any punishment and through it its purposes are reached.

The Russian scientists have noticed, that the question on efficiency of the criminal legislation is appreciably reduced to a question on efficiency of punishment under criminal law and depends on correct definition of the purposes of punishment. [99]

In our opinion, it is necessary to carry the purpose of the general prevention, the prevention of committing a crime to a punishment main objective somebody.

The doctrine concept about punishment on the Somali criminal law is constructed on that principle that, the state punishes the person for the act caused to it which breaks the law, and also for behaviour which represents threat for the state and a society, encroaches on human life, a personal immunity, the property, family relations, the public safety. The purpose of application of punishment - to provide the rights protected by the law and freedom of the individual and a society as a whole that the state functioned normally.

Punishment carries out also social function in struggle against recurrent criminality. Recognising as a whole a repressive role of criminal law the state recognises that except for the death penalty application, condemned on punishment departure, or will ahead of schedule return to a society. Directly in Constitutions of Somalia, item 44 which and is called «the Social purpose of punishment» it is registered: the punishments limiting personal liberty, should not consist of the reference contradicting feeling of humanity or to interfere with moral rehabilitation of the condemned.

The state, awards punishment for the act aggrieving or threatening injuries to the person, or bases of a human society and awards punishment, indirectly connected with its preventive purpose. To the condemned person corrective measures of influence, including for further it resotsializatsii are applied. The broken balance of relations between the state and the offender thereby is restored in shape which is even more useful, than simple returning physical, (as in crimes against a life and health is it is impossible) material and moral harm for the harm caused guilty, thereby causing of last to become by an active member of community, i.e. To carry out socially useful role.

The special attention of the social purpose of punishment should be given at execution of imprisonment which under the maintenance assumes karatelno-educational relations between the state and the guilty person, instead of in case of appointment, for example, the fine (penalty) which mentions a sole property condemned and, hence, only indirectly can affect the person as consists in restriction of this person in the order right the money resources. And, the sums appointed to the person penalty court will affect not everyone condemned, financial condition of separate persons will allow to apprehend it, as «not the necessary purchase» about which simply it is necessary to forget. Hardly on such persons the penalty will influence keeping from fulfilment of new crimes.

Exception are appointment cases guilty the higher punitive measure (death penalty) which has been kept as it it will be shown further, in sanctions of articles establishing responsibility for most grave crimes according to the Somali national traditions and aspirations (ch. 3 items 16 of the Constitution of Somalia). [100] C.Bekkaria has stated thought comprehensible to Somalia that «severity of punishment should correspond to reaction of the nation to rough souls of the people which have hardly left a condition of wildness, it is necessary to operate with stronger and more sensitive impressions. The lightning is necessary to strike a furious animal, a shot from a gun only razdrazhit it. But as the soul of the people living in a society, is softened, their sensitivity increases...dolzhna to decrease force of punishment». [101]

Historical tendencies of development of the doctrine about the punishment under criminal law purposes went on a way «from difficult to simple» that is from revenge and requital, to more practical - to the prevention and rehabilitation.

As the deterrent, the punitive measure for a crime, as though builds to people model of due behaviour, namely, it urged to postpone that is correct and that is wrong in a society in their consciousness. Punishment effectively supports morals, values and ethics which are important for any society and tries to dissuade people from infringement of these important standards of a society. In this sense, the punishment purpose consists in deduction of people from participation in the acts recognised as the law by the wrongful.

It is easy to notice, that questions on the punishment purposes can be reflected in different sources. For example, in Somalia, Italy, Spain and El Salvador the punishment purposes are defined in the Constitution (position of item 44 of the Constitution of Somalia has been above resulted).

About the punishment purposes it is indirectly spoken, for example, in UPK to France 1958г., according to which: such measure as the permission temporarily to leave penitantiary establishment, has for an object «to prepare professional or social adaptation condemned, to keep its family relations or to give it possibility to execute any duty demanding its presence» [102] (item 723-3 UPK of France).

The similar instructions in the law are focused on achievement of the purpose of correction and resotsializatsii the guilty. Not having legislative reference points about the punishment purposes, courts at its appointment are guided by the various reasons quite often caused by features of their outlook, conditions in the country, certain region and so forth

In the Constitution of Italy (ch. 3 items 27) also are paid attention to the punishment purposes: «Punishments cannot be severe, and should have the

The purpose re-education condemned ». [103] Punishment should not degrade human advantage. It allows to understand idea on which the maintenance of punishment and an establishment of an order its executions directed on achievement more of preventive effect is based. The increase in potential of preventive effect of punishment serves as the committing a crime deterrent. [104]

Some Italian authors consider, that discriminating feature of punishment under criminal law is that it acts as means of causing of sufferings. It not the purpose, and attribute of punishment, i.e. the integral property of punishment. [105]

In the countries of northern Europe, in particular, in Norway dominate the relative theory of punishment, both in the criminal law theory, and in the criminally-executive policy. The Ministry of Justice of Norway has declared in Criminal code preparation 2005г what to say that the punishment purpose is punishment - a bad form. Further it is spoken: the Ministry considers, that the punishment purposes should be, the control of behaviour over the person in the present and the future to affect development of a society and coexistence of a qualitative basis of current value of its priorities. Thus, punishment under criminal law has the main objective the prevention of fulfilment of new penal acts, as persons, their not making, and their persons already made, that is the general and private prevention. The purpose of double prevention is the prevention of undesirable behaviour and

Preventions of social intensity as a result of undesirable behaviour that should not occur. [106]

T.F.Minjazeva notices, that precautionary measures are applied for the purpose of elimination, first, the reasons of offences, and secondly, conditions of their fulfilment and to overcoming of negative installations in mass consciousness. [107]

On the contrary, the legislation, for example, the Russian Federation and some developing countries is contained by norms about the punishment purposes. So in item 43 ч.2 UK the Russian Federation is spoken: «Punishment is applied with a view of social justice restoration, and also with a view of correction condemned and preventions of fulfilment of new crimes».

Norms about the punishment purposes can be found out in item 85 UK of Ethiopia in which it is spoken, «Punishments and other measures provided by the present code should be applied according to spirit of the present code and to reach an object in view». And according to item 1 UK of Ethiopia «the criminal law purpose is maintenance of the world and safety of the state and its inhabitants for the society blessing. It (aim) it is directed on prevention of crimes, by the appropriate prevention from crimes and punishments, statutory, and there should be the forces providing punishment and correction of criminals, and also a measure on prevention of fulfilment of new crimes». [108]

According to stated, in UK Ethiopia are reflected the purposes of the prevention of fulfilment of new crimes and correction of the person who has already made punishable act.

The prevention as the punishment purpose, in the countries of the Anglo-Saxon legal system is called as intimidation though, strictly speaking, the prevention

A little bit more widely intimidation. The prevention of fulfilment of crimes - the major and a punishment main objective, and it in our opinion, should be put in the criminal law on the first place in the list of the purposes of punishment. However the given purpose does not exclude other purposes of punishment.

The purpose of the general prevention is realised by means of intimidation and, in any measure, fair punishment. The purpose of special prevention is reached by application of measures which will neutralise social danger of the criminal, creating obstacles for fulfilment of criminal actions in the future the same subject. [109]

Intimidation is represented, that, do not aim punishments, and means of achievement of the purposes - the general and special prevention. The general prevention means the prevention of fulfilment of crimes from any member of a society, and the special prevention means the prevention of relapse from the person who have committed a crime. [110]

Supporters of a recognition of intimidation by the punishment purpose, prove the position that for the prevention of fulfilment of new crimes, the person should be punished for crime already committed by it. They believe, that punishment, especially when the person himself has incurred it for sodejannoe or has seen, how the criminal has been punished, can keep the person from fulfilment of crimes and thus has preventive advantage. Practice shows, that application of punishment as the frightening factor has a fundamental lack, that the human nature tends to ignore punishment possibility until it it has not concerned. The constitution of Somalia that has been noted above, does not carry intimidation to the punishment purpose. UK the Russian Federation defines

The crime as is guilty the perfect socially dangerous act forbidden by the law under the threat of punishment (ч.1 item 14) and in ch. 2 items 43 restoration of social justice allocates as the purposes of punishment correction condemned and the prevention of fulfilment of new crimes.

The history of application of punishment shows, that its severity does not reduce criminality.

In one of B.S.wol's works writes: «punishment pursues, first of all, obshchepredupreditelnye the purposes. In any society it acts as a protection frame from infringements of conditions of its existence. Hence, the given purpose should be put on the first place in the characteristic of the purposes of punishments». Further he writes, that certainly, punishment carries out also other purposes: social justice restoration (education and punishment), correction condemned, compensation of the caused harm, etc., having the subordinated value In essence they act to means of achievement of an overall objective which is put before punishment - the committing a crime prevention. [111]

I.I.Karpets believed, that the purpose of the special prevention is realised by deprivation of the criminal of physical possibility to make other punishable act, by mental influence and by intimidation. However, if the person is sentenced for the first time to such punishment as imprisonment it should not be long as as a rule, the greatest effect has initial impression of stay in prison. It is for a long time remembered and keeps the person from committing a crime further. But the most important thing is an inevitability of responsibility for sodejannoe which, has

As the general, and chastnopredupreditelnoe value. Still C.Bekkaria underlined, that «the confidence of inevitability at least and moderate punishment will make always bolshee impression, than fear before other more rigid, but accompanied by hope of impunity». [112] This thought is represented rather actual and now, and both in developed, and in developing countries, including in Somalia.

The correction purpose rather new in criminal law. This purpose of punishment became enough the popular theory after occurrence of the new social protection, received the name in criminal law of the countries of the continental legal system "resotsializatsii". [113]

It is necessary to notice, that punishment application reaches also other purposes: for example, "educational". Punishment shows to a society, what social norms are comprehensible, and what are not present. People study, through supervision, reading and to listen to different situations, when the people who broken the law and have received punishment, that they in a condition to make in a society. Punishment learns the people, they have what rights in the society what behaviour it is supposed, and what actions are inadmissible. In any measure punishment realises the purpose of restoration of social justice, correction condemned, restoration of the broken right, maintenance of calmness of citizens, etc. But these purposes, have the subordinated value, finally, they are directed on strengthening of precautionary value of punishment. Social justice restoration as the punishment under criminal law purpose is defined for the first time directly in the Russian criminal legislation. The recognition of restoration of social justice the punishment purpose (moreover put by the legislator on the first place among other purposes) demands a simultaneous frank recognition that this purpose cannot

To mean anything else, as the punishment purposes - restoration of the values broken by a crime and the rights. [114] T.F.Minjazeva has accurately noticed, that «concerning guilty social justice is restored by action of all corrective system... Is the principle of the criminal liability fixed in item 6 UK the Russian Federation, instead of the punishment purpose». [115]

At the same time, the legislator quite often defines the purposes of application of separate criminally-legal measures, in particular what represent alternative traditional and everywhere dominating on practice of their application to punishment kinds: to imprisonment and the penalty. [116]

It is necessary to notice especially, that in Somalia and during modern time punishment application (at its appointment) is based on norms of Sheriyat that assumes to address to the decision of this question in Islam. As the former vice-president of the Supreme Court of Somalia marks, Sheriyat laws have made essential impact on a common law. [117] main objectives of punishments in Islam are: punishment, the prevention and re-education. As, we see, these purposes are similar with earlier considered. Only, in our opinion, punishment does not need to be considered as the punishment purpose, as as that punishment in the maintenance of punishments, except for a death penalty it is not observed.

The basic idea of Islam consists in aspiration of protection of a society from (harm) of dangers of a crime. Well-known, that if with crimes not to contrast serious punishments the society will be in serious danger. Islam aspires to make social stability and to provide

Safety of the people. The prevention of fulfilment of new crimes by means of punishment of the criminal represents itself as the deterrent for a society from committing a crime. It is considered, that is undesirable to address scornfully with the criminal who threatens safety of a society. This right of a society to protection of the safety and safety of the separate members. [118]

In Islam there are different degrees of punishment which weights sodejannogo correspond, and to its character, and also other factors accompanying it. All these factors influence achievement above the designated purposes. [119]

Punishment by the earliest understanding of punishment is revenge for satisfaction of feelings of the victim. However in the punishment concept - punishments there is not only positive, but also a negative moment: it assumes application of unduly severe punishments, and, besides, ignores causes of crime and does not try to eliminate them. On a continental part of Europe occurrence of the purpose of punishment connect with I.Kanta's name and "classical" school of the right. Followers of classical school of the right proved the criminal liability a postulate on «absolutely free person», allocated with consciousness and will, in conformity with which the subject is always capable to choose a correct variant of behaviour. Supporters of a positivistic direction insisted on creation of system of the measures adapted for type of the offender and having therapeutic functions in relation to persons which social restoration is possible, and neutralised functions in relation to the persons which social restoration is impossible. If a penalty not to consider as the punishment purpose lose the precautionary value other purposes of punishment. The principle of differentiation of the criminal liability provided in the criminal law depending on character and degree of the social danger of act, the person guilty and other circumstances of committing a crime visually underlines value of a penalty, as punishment maintenances.

The penalty cannot be the punishment purpose. Otherwise in a basis of definition of the purposes of punishment should be the talio principle is put in pawn. The penalty as the punishment purpose was widely propagandised by representatives of classical school, its bright spokesman was I.Kant as whom considered as the creator of the theory material otplaty. Very severe theory in which obvious discrepancy to moral principles of a modern society is shown. Unlike practically unanimous opinion of lawyers of criminalists from foreign developed and developing countries of a position of the Russian scientists concerning such purpose of punishment as punishment or a penalty disperse. One consider, that the penalty is the essence, the integral property of punishment. Them, perhaps, the majority. [120] others nevertheless consider a penalty as the punishment purpose. The most consecutive supporter of that the penalty is the punishment purpose was And. And Karpets. In its opinion, most brightly aim penalties it is shown in a death penalty and long terms of imprisonment. [121]

The death penalty reaches on all of 100 % the purpose of the private prevention of fulfilment by the person of new crimes and in it exclusiveness of the maintenance of this punishment, as means of achievement of the purpose of special prevention.

The penalty is means which causes certain suffering. The penalty corresponds with punishment, as whole and a part. Causing of suffering and deprivation, restriction of the rights and freedom, peculiar to a penalty, as to the maintenance

Compulsions are pursued in turn by the aim ispravitelno - educational influence on guilty. «The penalty represents objective in the basis proportional requital guilty for the act made by it, the suffering is a subjective perception the person of such requital, and as everyone subjective, it not necessarily coincides with the objective. Same under the maintenance and volume the penalty can condemned to be perceived by one as intolerable suffering, others, as small trouble». [122] Many condemned perceive a penalty peculiar to punishment as unique means of expiation of fault.

In an extreme antiquity of one of the punishment purposes recognised fault expiation. Many thinkers of various directions agree with this idea. On the one hand, the criminal should expiate the crime suffering. With another when punishment will be appointed, there is implicit an idea of squaring of accounts. Behind a crime has been paid"by punishment, again a blank leaf. This some kind of balance between a crime and punishment is seen also in the punishment doctrine, and it is often difficult to separate one concept from another. Even often quoted law of the talio can obosnovanno be specified in a context of expiation of fault having counterbalanced the done harm punishment - an eye for an eye and a tooth for a tooth. It is possible even to tell, that expiation, in Christian sense a repentance, it is possible in test by punishment. In our opinion fault expiation is put in pawn in a penalty as the maintenance of punishment and is mediated it it is possible to consider as means of achievement of the purposes. About it already there was a speech above.

Proceeding from stated and taking into account the analysis of norms of the Constitution and UK Somalias the punishment purposes are the prevention of fulfilment of new crimes, correction condemned and its social rehabilitation.

In Somalia there is a special institute of full rehabilitation of the persons who have served time for sodejannoe. Conformity of the person to rehabilitation requirements means it resotsializatsiju and testifies to achievement of the purposes of the form of realisation of responsibility applied and executed concerning it.

Positions about rehabilitation are reflected regarding V chapter II UK Somalia. «Conditional stay of execution of punishment» (the item of item 152-154 UK) in which conditions for rehabilitation are specified, and also conditions at which rehabilitation is not supposed. Rehabilitation not automatically, and on the basis of the reference of the person in supervisory authority court is made. Rehabilitation repays action of additional punishments and any other legal consequence of condemnation if other is not statutory (item 152 UK Somalia).

Rehabilitation is supposed, if has passed five years from the date of departure or repayment otherwise the basic punishment both condemned has shown the valid and steady proofs of respectable behaviour. For rehabilitation of recidivists, ten years' term after punishment departure is established. Such term for rehabilitation is established not for all recidivists, but only for at what relapse is the aggravating circumstance. (ch. 2 items 61 UK Somalia). Similar term (10 years) is provided for habitual or professional criminals (item 153 UK Somalia). As an example it is possible to consider the following situation: if the person is condemned for a robbery at the aggravating circumstances, provided ch. 3 items 484 UK Somalia also are sentenced to fifteen years of imprisonment, and after departure of two years has been pardoned according to item 149 UK Somalia it has the right to rehabilitation after five years after pardon granting. Condition of application of five years' term for full rehabilitation of the person are visible proofs the behaviour during this period of intention to lead a worthy way of life.

The decision about rehabilitation is cancelled owing to the law if the rehabilitated will commit within five years a crime which is not careless, for which imprisonment not below three years or another, more a heavy punishment (item 154 UK Somalia) will be appointed. The formulation «owing to the law» means automatic cancellation, from the point of view of the law which is not supposing the judicial discretion.

Conditions of the decision of a question on rehabilitation cancellation, recognition its error can be: first, data about obscene behaviour of the person; secondly - fulfilment by the person of a new deliberate criminal offence within five years after rehabilitation. However, it concerns only to certain by the law to kinds of criminal offences. Fulfilment of a new criminal offence on imprudence is not a condition of cancellation of rehabilitation. It is quite logical, as the offence made on imprudence, only shows, that in actions of the criminal there is no desire, and there is no criminal sincere condition. Punishment for a crime made after the decision about rehabilitation is appointed to term not less than three years. It means, that if criminal act is punished by imprisonment for a period of five years and convicted is sentenced to two years, the rehabilitation decision cannot be cancelled. If it is sentenced to four years for the given crime, it can be cancelled.

Rehabilitation can extend on those prisoners who have received long terms of imprisonment who have left not less than five years and have proved from a positive side.

According to position of item 154 UK Somalia rehabilitation repays all consequences of condemnation, it is released from a duty to leave the remained penal term without any conditions. It

Rehabilitation also differ from is conditional-preschedule clearing of imprisonment serving.

The rehabilitation institute in Somalia differs and from the Russian concept of repayment and previous conviction removal though has with them external similarity. In Somalia the institute of rehabilitation of the person who have served time, includes not only removal of all criminally-legal restrictions connected with condemnation, but also an exception of data on a previous conviction from an official card file. The legislation of Somalia, Italy, Argentina, Burundi, France and some other countries, rehabilitation as a punishment endured consequence, understand a little differently than in Russia. Rehabilitation means preschedule cancellation under the decree of additional punishments in the form of the deprivation after departure of the basic punishment under condition of good behaviour condemned. [123]

Rehabilitation in criminal law of the above-stated countries is a special institute which is created with a view of granting condemned, served time, the second possibility «to start to live with a blank leaf» if he deserves it. It the rehabilitation institute in Somalia and the above-named countries differs from Russia since in Russia rehabilitation is made only concerning illegally condemned.

Rehabilitation in criminal trial of Russia is an order of restoration of the rights and freedom of the person, illegally or unreasonably subjected to criminal prosecution, and compensation of the harm caused to it (item 34 of item 5 UPK the Russian Federation).

According to the Italian scientists, the rehabilitation institute has assistance function resotsializatsii condemned, by elimination of harm,

From which its reputation can suffer from adjudgment in the certificate on a previous conviction. [124]

Similar position is provided and in the current legislation of France. However the specified interdiction does not extend on originals of judgements, sentences and decisions of item 133-11 UK of France. The concept of rehabilitation, under the Criminal code of France means «cancellation of cards of condemnation in the file of the criminalistic account», than (this cancellation) provides «a true pardon» and the person who was on the account, «becomes free from the corresponding control». The fact of an institution of the file and the computer account of the persons supposing various offences «warned in this occasion court», already is «the special legal control» (it is called in the project and the judicial review). [125]

Apparently, the given norm carries not optional, but imperative character as specifies an interdiction for a previous conviction mention in any form or to do on them references in any documents.

In Russia the person is considered not sudimym if the previous conviction is removed or extinguished, however, data on all osuzhdenijah remain in a card file, that, as though puts to it «a brand for all life».

Rehabilitation of the person - it is valid, very original and humane consequence of condemnation which allows the repented ex-offender to return by absolutely high-grade life and to judge achievement of the purposes put before punishment.

The Somali jurists (91 %) and practising judges of 96 % with whom selective interrogation has been spent, consider, that punishment in

The modern period of development of Somalia, taking into account traditions of Islam, pursues, first of all, obshchepredupreditelnye the purposes.

Proceeding from the analysis of the current legislation of Somalia and conventional rules in that part which has the direct relation to cases in point, it is possible to formulate fixing a sentence comprehensible to Somalia and its purposes. We suggest to define punishment as provided by the criminal law and established in sanctions of articles of its special part a reciprocal forced measure of the state on caused to it, or members of a society angrily, applied by court to the person recognised in it guilty and consisting in deprivation or restriction of the rights and freedom of this person.

The punishment purposes are the prevention of fulfilment of new crimes, correction condemned and its social rehabilitation.

We suggest to add ch. IV UK Somalia «About punishments» item 901, naming it «Concept and the punishment purposes» in the above-stated formulation.

In summary it would be desirable to notice, that positions about the punishment maintenance, its purposes in bolshej parts, behind some exception, concern and other forms of realisation of the criminal liability. Thereupon it is possible to think of a design in reformed UK Somalia, or one norm about the maintenance and the purposes of all forms of realisation of the criminal liability, or in section with the norms reflecting specificity of the maintenance and the purposes other, not being punishment, forms of realisation of the criminal liability.

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A source: AHMED ABDIKARIM ALI. FORMS of REALIZATION of the CRIMINAL LIABILITY In FEDERAL REPUBLIC Somalia. The DISSERTATION on competition of a scientific degree of the Master of laws. Moscow -. 2016

More on topic § 1. Concept of punishment and value of its purposes of criminal liability realisation in Somalia.:

  1. CHAPTER 1. CONCEPT And the CRIMINAL LIABILITY BASIS ON CRIMINAL LAW of Somalia.
  2. CHAPTER 3. OTHER FORMS of REALIZATION of the CRIMINAL LIABILITY In Somalia
  3. § 1. Essence of punishment. A punishment under criminal law and criminal liability parity
  4. § 2. Problems of realisation of the purposes of punishment at its execution concerning the crimes condemned for plurality
  5. § 3. The punishment purposes in criminal law of the Yemen republic
  6. § 4. The punishment purposes in criminal law of the Russian Federation
  7. § 3.3. The special bases of clearing of the criminal liability (punishment) for granting of the false information dangerous to the criminal trial, under the legislation of Russia, the countries of continental Europe and the USA
  8. AHMED ABDIKARIM ALI. FORMS of REALIZATION of the CRIMINAL LIABILITY In FEDERAL REPUBLIC Somalia. The DISSERTATION on competition of a scientific degree of the Master of laws. Moscow -, 2016 2016
  9. § 2. Correction condemned and social justice restoration as the purposes of punishment under criminal law and possibilityof an estimation of their achievement
  10. §2. Crime elements as the basis of realisation of forms of the criminal liability.
  11. Chapter 2. Punishment under criminal law: essence, the purposes and the influence mechanism
  12. CHAPTER 2. PUNISHMENT, AS the FORM of REALIZATION of the CRIMINAL LIABILITY.
  13. § 2. Concept of punishment of criminal law of the Russian Federation
  14. § 2. Concept «efficiency of punishment under criminal law» and model of its estimation
  15. § 1. Concept and the punishment nature of criminal law of the Yemen Republic
  16. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  17. the Bases of softening of punishment under criminal law: concept, the legal nature, system, classification