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§1. Security measures

The positions considered in the first and second heads of the present work about concept and the basis of the criminal liability; about the purposes of punishment and its maintenance, etc. extend on all forms of realisation of the criminal liability with some features about which speech in this chapter will go.

As it was already marked on work pages (31, 47, 65) by others, than punishments by forms of realisation of the criminal liability are those forms of compulsory influence on the person who has made punishable act which are not established in sanctions of the Special part of the criminal code. They are appointed to the person who has made this act according to positions of norms of its General part UK Somalia on behalf of the state and form independent forms of an individualization of the compulsion provided by the criminal law for sodejannoe. Exception are a premise of the person in hospital or a boarding school for mentally sick and a premise in psychiatric hospital (forced measures of medical character) which can be applied and to the persons who have not made penal act, but recognised socially dangerous owing to the disease. To the persons who have not made penal act, but recognised socially dangerous court can be applied and other security measures which in such cases also do not concern forms of realisation of the criminal liability.

Under the maintenance all security measures, as well as punishment, are expressed in statutory deprivations or restrictions of the rights and freedom of persons by which they are appointed. Similarity between punishment and measures

Safety consists in that «that they represent official (legal) reaction of the state to fulfilment of criminally-punishable act and are applied within the limits of criminally-remedial activity. Application of security measures is connected with achievement of the purpose of the special prevention and unlike punishment under criminal law does not pursue the aim of the general prevention. In the legislation of Germany which provides the widest set of the security measures called by" correction and safety measures »the basis for their application it agree § 62 UK Germany the act made by the subject and degree of danger proceeding from it is. [153] in N.F.Kuznetsova's this occasion wrote, that the basic criterion for appointment of security measures -« the danger of the subject defined on danger of its way of life and a views ». She noticed, that« elimination, suppression of this danger - an overall objective of measures of correction and safety ». [154] Allocation of this feature of the purposes of application of security measures is comprehensible and to Somalia.

Main objective of application of security measures is private prevention, and concerning insane persons - treatment or improvement of their mental condition.

According to the law at a recognition of the person socially dangerous, the judge should not motivate in addition appointment to it of a security measure, it simply should appoint it. The problem consists in revealing of socially dangerous persons and appropriate execution concerning them security measures.

Security measures as forms of realisation of the criminal liability have appeared in the end of XIX — first half of XX-th century. They, irrespective of the legal technics of their fastening in the law (in the separate chapter, or norm) are present in UK the majority of the countries, but with the different name.

For example, in Russia, it is other measures of criminally-legal character (item 90,91,97,99 item, 104^104^1043 UK the Russian Federation, etc.). In Germany - «correction and safety measures» (§ 61-70 UK Germany).

However punishment remains the basic and most widespread form of realisation of the criminal liability, in most cases from which possibility of application of security measures depends.

In the criminal law of Somalia the combination of two directions in the approach to criminal liability questions - classical and positivistic is accurately traced. It is shown that to the persons guilty of committing a crime, punishment, and to the persons recognised as court "socially dangerous", is applied security measures are applied.

UK Somalia does not contain definition of security measures. However the analysis of norms allows to draw a conclusion on security measures, the basis and conditions of their application that are peculiar to them as the general, characteristic signs for such measures, and special, peculiar Somalias.

One of features of security measures in Somalia as it already was marked, is possibility of their application irrespective of the fact of fulfilment of penal act (a crime or an offence) to the person recognised, at the judicial discretion, socially dangerous (item 162-180 item) but with the account, the act kind, which this person, can make. In item 164 UK Somalia definition of socially dangerous person, as persons deranged or doing not come under to punishment, but made one of punishable acts, and in the presence of probability of fulfilment is made of them of new such acts (item 163 UK).

According to item 1 of item 163 UK Somalia security measures can be applied only to socially dangerous persons whom concern as the persons who have made act, forbidden by the criminal law, and the persons who have not made such act, but are probability of its fulfilment in the future.

Security measures in cases of their application to the persons who were not making punishable acts, or made such acts in a condition excluding responsibility, do not concern forms of realisation of the criminal liability.

Security measures can be applied to foreign subjects and the stateless persons who are in territory of Somalia (ch. 3 items 163 UK) on the same basis, as for citizens of Somalia.

To persons in which relation there is a fear of fulfilment of an offence, carry the insane person showing aggression. Such person place in psychiatric hospital. According to ch. 1 item 176 UK the person, suffering the mental derangement, is considered socially dangerous even if it has not made, the act provided by the criminal law.

By socially dangerous person the child who not reached age of fourteen years and has negatively proved with the behaviour in a society can be recognised. Taking into account degree of danger of the act made by it, especially if it is provided UK Somalia, it place in reformatory. Sincerely sick and children are elderly till fourteen years, despite application to them of criminal law positions, do not bear the criminal liability in view of absence at them ability to realise the acts and to supervise over them (diminished responsibility - item 50 UK Somalia) or in force not achievements of age of the criminal liability (item 59 UK Somalia). In such cases there is no moral element of a crime, that is, there is no basis for criminal liability realisation.

The analysis of norms about security measures in Somalia allows to define them

As the set, established by norms of General part UK Somalia

The forced measures applied by court to the person, recognised socially

It dangerous in connection with fulfilment of the act provided by the criminal law, or in connection with bent of the person to its fulfilment recognised socially dangerous, or in connection with not achievement by the person of age of the criminal liability, or in connection with adherence of the person to the use of stupefying means, and its rights expressed in restriction and freedom up to isolation from a society for their application with a view of the fulfilment prevention such person of socially dangerous acts and (or) with a view of treatment or improvement of a state of health of this person.

Named above a measure in cases of their application to the persons who have made penal act in a condition, not excluding responsibility, are independent forms of realisation of the criminal liability

In Somalia security measures are applied to the person also, as well as punishment according to a legality principle that is directly reflected in item 161 UK Somalia: nobody can be subjected to security measures, except as on the basis of the law.

Security measures can be to the assignees who have made attempt at unreal object (ch. 3 items 19 UK Somalia). In the theory of criminal law such object name either absent object, or an unusable subject of a crime, for example, in cases when the person has opened the safe, and there money has not appeared. In such cases application of security measures has precautionary character and urged to combine compulsory influence on the person for the purpose of its correction by less strict, than punishment under criminal law by means, providing legality and law and order observance in a society. The prevention also consists in an explanation, for example, to the minor, danger degree

The act of adverse consequences of its repeated fulfilment made by it. [155]

As forms of realisation of the criminal liability of a security measure in Somalia are appointed, as a rule, to the long period of time. As there is a probability, that the legislation regulating application of such measures, can change, so far as item 162 UK Somalia contains the general rule, according to which person the security measure operating at the moment of its appointment is selected, and in case of its change (if it is not connected with an exception given from among security measures) it will be executed by the rules operating at the moment of its execution if these rules improve position of this person. If the novel worsens position of the person the law operating at the moment of appointment of a security measure is applied.

The law establishes only the minimum term of application of security measures. Their application stops when the person ceases to be dangerous to a society. Thus the judge periodically should check business materials, studying behaviour of the person whether to define prestalo it to be dangerous to a society and whether probably to release it from application of the appointed security measure.

Duration of terms of security measures quite often depends on a state of health of the person with which possibility of a prediction of its behaviour in the future is connected.

The list of security measures contains in the item of item 172 and 182 UK Somalia. It is presented in these articles taking into account classification on freedom personal, connected and not connected with restriction, and property. Confiscation concerns the last.

The personal security measures connected with restriction of freedom according to item 172 UK Somalia concern:

a) a premise in hospital or a boarding school for mentally sick;

b) a premise in psychiatric hospital;

c) a premise in reformatory. This establishment is intended for minors.

In hospital or a boarding school for mentally sick and a premise of the person in psychiatric hospital it is possible to name a premise of the person forced measures of medical character which are forms of realisation of the criminal liability in cases of their application to the persons who have made penal act in a condition, not excluding responsibility.

The personal security measures which have been not connected with restriction of freedom concern:

a) police surveillance;

b) deportation of the foreigner from the countries (dispatch).

Premise in hospital or a boarding school for mentally sick.

According to ch. 1 items 173 UK Somalia the person convicted of the deliberate

Crime for which under the law punishment in the form of imprisonment for the term of not less than 5 years is provided, and sentenced to the punishment which is coming under to softening owing to its mental instability either a chronic intoxication by alcohol or drugs, or because of deafness and dumbness, it will be placed in hospital or a boarding school for mentally sick, for not less than one year. If for the act made by the person punishment in the form of a death penalty or lifelong imprisonment or imprisonment for the term of not less than 10 years term of the given security measure appointed to such person cannot be less than 3 years (ch is established. 2 items 173 UK Somalia). If the punishment provided for any offence, imprisonment is and thus condemned that is socially dangerous, it will be placed in hospital or a boarding school for mentally sick for the period, not less than six months (ch. 3 items 173 UK Somalia). However, the judge can give the order on an establishment for the person of the police control instead of applying to it the conclusion, except for cases when punishment should be softened owing to a chronic intoxication by alcohol or drugs. If to the person the premise in hospital or a boarding school for mentally sick no other security measures connected with personal restraint, can be applied (ch has been appointed. 4 items 173 UK Somalia).

According to positions ch. ch. 1 and 2 items 173 UK Somalia the security measure in the form of a premise in hospital or a boarding school for mentally sick can be applied only in cases of fulfilment by the person of deliberate crimes. In case the crime is made on imprudence, the sentence concerning the condemned should be softened, if the person: it is mentally unbalanced; suffers from a chronic intoxication alcohol or drugs; or suffers deafness or dumbness. If the offender is convicted of fulfilment of criminal offences which under the law are punished by punishment in the form of imprisonment for the term of not less than five years, hence it is dangerous enough acts, for example, a robbery with aggravating consequences (ch. Z item 484 UK Somalia); a heavy physical injury (ch. Z item 440 UK Somalia) and extortion with aggravating consequences (ch. 2 items 485 UK Somalia) the judge should appoint a security measure in the form of the conclusion in hospital or a boarding school for mentally sick for the term of not less than one year.

Premise in psychiatric hospital.

In medical psychiatric institutions the persons condemned for a crime, made on imprudence owing to mental instability either a chronic intoxication with alcohol or drugs, or because of deafness or dumbness for the term of not less than two years (item 176 UK Somalia) are located. If for committed they of a crime provide punishment in the form of imprisonment for the term of not less than two years. If for the committed crime the law provides punishment, in the form of a death penalty or lifelong imprisonment the minimum term of a premise in psychiatric hospital constitutes ten years. The specified security measure is appointed to term not less than five years if for fulfilment the crime is provided punishment in the form of imprisonment for the term of not less than 10 years. Positions of this article will be applied also to the persons justified for sodejannoe because of their age, any conditions containing in ch in this case are applicable. 1 this article (ch. 4 items 176 UK Somalia). However, and it needs to be underlined especially, the mentioned position of item 176 UK Somalia is applied only in cases when the condemned is justified for the reasons of mental instability, chronic intoxication by alcohol or drugs, or for the reasons of deafness or dumbness. All these conditions testify to inability of the person to be responsible for the act made by them as it is considered, that they do not have consciousness and the will demanded for a recognition someone guilty of fulfilment of criminal action. [156]

Apparently, UK Somalia, in difference, for example, from Russia, connects duration of a finding of the person in a medical institution, first of all, with weight of perfect act, instead of with a state of health of the person.

The premise in reformatory is a special security measure for minors. During the investigation or proceeding, the judge can enact, that the person who has not reached eighteen years, or the person with unhealthy mentality, the addict, the chronic alcoholic, have been preliminary sent in reformatory, hospital for mentally sick, hospital or a boarding school for mentally sick.

As marks Paolo Kontini, the purpose of granting to the judge of a discretional law is investment with its lawful possibility to protect a society from persons who represent danger to a society and which can make and other crimes before proceeding, adjudgment. [157]

To a category of persons which owing to certain factors cannot supervise completely the behaviour, concern: mentally unhealthy persons, minor, alcoholics, addicts.

If the minor who has not reached age of 14 years, has made the deliberate act provided by the criminal law punishable by a death penalty either lifelong imprisonment or imprisonment for the term up to three years it should be placed in reformatory for the term of not less than three years (item 117 UK Somalia). In similar cases the given security measure is not the form of realisation of the criminal liability though Somalia is applied according to norms UK.

In 2007 in Somalia, for the first time in history the countries, with a view of maintenance state and the public safety have been passed the law on counteraction to terrorism. [158] According to this law, persons whose actions fall under extremism signs, or terrorism, can be subjected a security measure (item 8 of the Law on counteraction to terrorism).

The law on counteraction to terrorism of 2007 has accorded vessels a right, as well as in the USA to sentence condemned to long terms of imprisonment with possible prolongation of this term (item 8). In essence, the person can be subjected uncertain prison term as it represents serious danger to a society. Thus the law has expanded court discretionary powers, and also the list of persons in which relation security measures are applied.

The security measure in the form of police surveillance is appointed to term not less than one year. Police surveillance will be appointed in the event that punishment in the form of imprisonment for not less than ten years is provided. Thus police surveillance will last not less than three years. Police surveillance also should be imposed in all cases of conditional release of the person and in all other cases, statutory (item 180 UK Somalia).

If the person is sentenced to ten years of prison or longer term, police surveillance will last not less than three years. It can be forbidden to the person who is under police surveillance, to leave a certain place, to visit certain places, for example, bars where spirits are on sale. It can oblige to visit weekly, or monthly, and in cases of necessity and daily a police station, for the control over it. The laid down conditions should correspond to the nature of a crime and character of the criminal. It is necessary to notice, that in the legislation of Somalia and Germany these questions are regulated by similar image. [159]

Security measures in the form of deportation of the foreign subject from the countries (dispatch) it is applied concerning the foreign subjects guilty of committing a crime and sentenced to imprisonment for the term of not less than ten years, these persons should be sent from republic (item 181 UK Somalia). This article is applied only concerning foreign subjects, dispatch of own citizens is forbidden the country constitution, (item 11 of the Constitution of Somalia says, that the citizen cannot be deported from republic). However in time

Constitutions of Federal Republic Somalia which operates now, such position has not found the fastening.

As it was marked above, a principal cause for security measure imposing is danger of the person to a society. Hence, if the person remains dangerous to a society, the security measure cannot be cancelled. Cancellation of application of a security measure cannot have a place before the expiration of is minimum necessary term, statutory for each security measure (item 167 UK Somalia).

After term is minimum necessary for everyone security measure, the judge considers a question on a state of health of the person, its behaviour, the characteristic for that establishment, whether it continues to remain socially dangerous.

If it will be found out, that the person continues to be socially dangerous, the court appoints new term for the subsequent legal investigation. But if there is a basis to consider, that danger has disappeared, the court can start at any time business new trial (item 168 UK Somalia).

The security measures appointed in addition to imprisonment, are executed after the criminal has left a corresponding imprisonment term, or the verdict of guilty has been excellent. Execution of the urgent security measures appointed in addition to punishment, except to punishment in the form of imprisonment, come under to execution after the sentence will enter validity (item 170 UK Somalia). If the person has been sentenced to two years of imprisonment, such security measure as police surveillance, will be applied after its clearing from prison.

Confiscation according to item 182 item, 183 UK Somalia concerns the property security measures, imposed on the property of the person who have made act, pursued by the criminal law, it can be applied, both in addition to punishment, and to other security measures.

However under the maintenance this measure is more similar to punishment of property character.

Confiscation can be the general and special. The general confiscation means full or partial compulsory withdrawal of property of the state condemned in the income, and special - withdrawal of tools and subjects of a crime, things and the means extracted as a result of committing a crime, the subjects forbidden for manufacturing, storage i.t.d. The judge can appoint confiscation of material objects which have been used or intended for use at committing a crime or from what incomes or benefit proceed.

Confiscation extends on:

The subjects extracted by means of fulfilment of punishable act;

Subjects, manufacture, use, storage, possession, or which alienation in itself are constituted by a crime, even in a case when it has not been accused. The specified positions are not applied to the persons which work is connected with such subjects (item 183 UK Somalia).

There are two kinds of confiscation - discretionary and obligatory. Discretionary confiscation according to point 1 of item 183 UK is a confiscation of things which have been used or it was supposed to use them for committing a crime, for example, the tools used for breaking of shop or that is the income or benefit of a crime, for example, the stolen property. Obligatory confiscation is considered in point 2 of item 183 UK «a confiscation should extend on those crimes as a result of which fulfilment the person has received material benefit», for example, for bribe reception, the government official that it has made

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The action contradicting its post or a payment, which the editor of the newspaper receives from another to discredit the third party.

Confiscation also is carried out concerning things, use, the possession or which storage constitutes an in itself crime, even if there is no charge. For example, the guns smuggled in Republic Somalia, should be confiscated, even if smugglers have not been convicted of contraband because possession of the weapon without the permission, already is a crime. According to ch. 3 items 183 UK Somalia do not come under to confiscation property which was used in committing a crime, incomes or benefit of a crime or objects which are benefit for a crime when the property belongs to the third party which at all did not accept participation in a crime. It is fair, as, the person who owns property, should not test loss if it has not made anything illegal. [160]

In the Italian edition of the criminal code, in item 4 of item 183 UK it is said, that subparagraph conditions «b» point 2 are not applied when the material object belongs to the person who did not accept participation in a crime and its manufacture, use, possession, storage or possession, maybe, is made only by competent body. English edition of point 4 says, that it is applied to point 2, which is not meaningful and probably is a typological error.

If the Italian variant undertakes as correct point 4 means, the following: if any citizen takes a pistol belonging on the basis of the law to other citizen, and uses it at committing a crime, the pistol cannot be confiscated, if the proprietor (or the legal holder of the weapon) did not accept participation in committing a crime. Usually, simple possession a pistol without

Permissions, will be the basis of its confiscation, according to point 2 conditions.

The general confiscation is provided for the most dangerous crimes, for example, for (misappropriation of public funds of item 241 UK Somalia), and also for (intended murder of item 434 UK Somalia). Translating into language of the Russian criminal law it is possible to tell, that these two kinds correspond to about what it was spoken above (the general and special confiscation). [161]

Unlike the penalty which can be, both the core, and a punishment auxiliary view, confiscation can be appointed only as the supplementary measure. In Somalia additional punishment is deprivation of a driving licence for certain term, the debaring to be engaged in medical or lawyer activity.

From told above it is visible, that positions UK Somalia about a confiscation are in detail enough settled by the Somali legislation. We consider, that confiscation is the effective form of realisation of the criminal liability, a kind of a security measure for the persons condemned for corruption crimes.

In summary it would be desirable to notice, that despite detailed legislative regulation of an order and conditions of appointment of the security measures provided UK Somalia, the specified institute, except for such measure as confiscation, in practice has not found wide application.

Before disintegration of the state preventive measures to political opponents were one of the widespread and often used tools of the prevention of fulfilment of criminal infringements. But in connection with absence of a political competition have lost the value as compulsion means.

Though in some cases application of preventive measures can historical be justified. As marked F. M.Reshetnikov, «preventive custody of political opponents can be justified in unusual cases, as forced and a provisional measure from the country of the government carrying out progressive policy and encountering resistance of reactionary elements». [162]

At the same time, application of such security measures, as a premise in a special medical institution or special psychiatric facility of the sick persons who have made penal acts, in modern conditions quite obosnovanno.

Thus it is necessary to notice especially, that the researches carried out by us have shown, that application of security measures concerning minors do not bring desirable results.

It is necessary to notice, that now in Somalia the tendency to reduction of application of the measures connected with a premise of the person in special establishments (reformatorii for minors, in hospital or a boarding school for mentally sick is appreciable; in psychiatric hospital). It is connected with absence at the state of sufficient means and the qualified experts, capable to render the demanded help to such persons.

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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

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