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§2. System and kinds of punishments.

Forms of the criminal liability in the presence of the basis and according to the purposes facing to them are realised, in the majority

Cases application of the punishment containing in the sanction of article made to the person.

In each state there is a system of kinds of punishments.

It is possible to notice, that between the criminal liability basis, the purposes of punishment and the system of penalties there is a close connection as the system of penalties is under construction by two-uniform criterion: to division of penal acts into crimes and infringements taking into account degree of severity of punishment and on their appointment as the core, additional, and what can be appointed, at judicial discretion, both as the core, and as additional punishment. Kinds of punishments are established in sanctions of articles of the Special part of the criminal code taking into account the punishment purposes, and, as the form of realisation of the criminal liability to the concrete person in the presence of the basis punishment is applied to achievement of objects in view - at judicial discretion.

In theory of law as the system of penalties understand «provided by the criminal law, internally ordered, exhaustive list of kinds of punishments which are intended for use in sanctions of norms of the Special part and application to the person recognised guilty of committing a crime». [126]

In UK Somalia the list of kinds of punishments is fixed in the item of item 90 and 92. This list is settling and to extensive interpretation does not come under.

The system of penalties fixed in the criminal law has a binding character for court. It should be understood in the sense that if the court awards punishment, it, as a rule, should select that its kind and the size which is provided in the sanction of corresponding norm of Special part UK, and in the presence of the basis and established in the law

Criteria, the court can define to the person and other form of realisation of the criminal liability. In Somalia, for example, to other forms of realisation of the criminal liability it is possible to carry security measures, conditional stay of execution of the appointed punishment, containing in norms of General part UK about which speech in §§ 1-2 third heads of the present research will go.

The system of penalties represents the complete tool of realisation of forms of the criminal liability. The system of penalties is not reduced only to the simple list of kinds of punishment because it besides (the item of item 90 92 UK Somalia), is reflected and in other norms UK, in particular, in construction of alternative punishments of norms of the Special part, at appointment of softer punishment, than provided for the given crime (item 119 UK Somalia), definition of penal terms at cumulative sentence (item 132 UK Somalia), calculation of penal terms and punishment offset (item 111 UK Somalia), etc.

The legislator, accepting the criminal code, aspired to create a set of forms of realisation of the criminal liability in the form of punishments which, in its opinion, would allow:

To consider distinctions of criminal behaviour and the person of the criminal;

To choose the kinds of forms of realisation of responsibility most suitable to typical situations;

To provide efficiency of the appointed form of realisation of responsibility.

One of signs of the system of penalties is its orderliness. In the system of penalties each kind of punishments takes strictly certain place depending on its comparative severity. Thus, the system of penalties should reflect the purposes of a legal and criminally-legal policy of Somalia in sphere of crime control and promote its effective realisation.

In the Somali criminal code the principle of construction of the system of penalties, «from more strict to less strict kind of punishment» is used. By the same criterion the system of penalties in UK Italy (item 17), UK Switzerland (item 35-40), UK France (item 131-1 - 131-18), UK Germany (item 38), UK Spain (item 33), UK Norway (item 15) and many other things the countries is constructed.

Each country has own system of punitive measures. The legislator establishes the list of these measures proceeding from social - cultural and is social-moral traditions of the country. In the criminal legislation of Somalia, also, as well as in UK Italy and Russia, are provided the basic and additional kinds of punishments.

Proceeding from the maintenance of item 92 UK Somalia, it is possible to allocate kinds of the punishments appointed either as the core, or as additional.

In criminal law of the African countries which have tested influence of English legal system, there is no division of punishments into the basic and additional (for example, in Kenya, Nigeria, Sudan, Tanzania, etc.).

As punishable acts in UK Somalia are subdivided into crimes and infringements so far as also the list contains the punishments established for crimes and for infringements. To the basic punishments appointed for crimes according to ch. 1 items 90 concern: a death penalty; lifelong imprisonment; imprisonment for certain term the penalty.

To the basic punishments appointed for infringements according to ch. 2 items 90 UK Somalia concern: imprisonment for certain term and the penalty.

According to ch. 1 items 92 UK Somalia additional punishments for crimes are: the debaring on post employment in official bodies; prohibition to be engaged in a certain trade or craft; a legal interdiction.

Additional punishment for infringements are: stay of employment by a certain trade or a craft (ch. 2 items 92). The Criminal law specifies cases when the additional punishments established for crimes, are applied as well for infringements (ch. 3 items 92).

As we see, specially allocated norm about punishments which can be appointed both as the core, and as additional in the law is not present. At the same time in ch. 2 items 97 UK Somalia contain position that for the crimes as which motive benefit has served, and the law provides only imprisonment, the judge can impose in addition the penalty at the rate from 10. To 20,000 Somali shill (from 10 to 50,000 Somali shill if the penalty is appointed as a punishment principal view). From this it is possible to allocate in the system of penalties of Somalia the penalty which can be appointed both as the core, and as a punishment auxiliary view, but not according to the sanction of corresponding norm, and at judicial discretion.

Let's notice, that for the infringements made on the same motive, the law (Somalia) does not give item 99 UK to discretional law court to impose the penalty as additional punishment.

System of kinds of punishment as a whole and each separate kind of punishment established in the law, comprise a complex of different levers on condemned which is individualised by court at adjudgment, and by bodies of execution of punishments it is realised, that expresses legitimate will of the state.

Separate kinds of punishment. And so, system of the basic punishments for crimes according to item 90 UK Somalia begins with a death penalty. Unlike Italy where the death penalty has been cancelled in 1994 [127]

The legislator of Somalia has left this kind of punishment, including its effective means of crime control in the conditions of civil war. The death penalty maintenance is expressed in lawful, on the basis of a sentence of court deprivation of the person of the right to life for the harm done to its.

The circle of the crimes punishable by a death penalty, under the legislation of the various countries is appreciably similar. On criminal law of Somalia the death penalty can be applied in following cases: an encroachment on inviolability, independence and unity of the Somali state; high treason (item 184); armed revolt against the Somali state (item 185); Investigation with foreigners with a view of conducting war against the Somali state (item 186); preference of the enemy during war (item 190); destruction or sabotage of military constructions (item 196); concealment, forgery or destruction of certificates or the documents, concerning safety of the Somali state (item 198); collecting of the data, concerning safety of the Somali state (item 199); political or military espionage (item 200); espionage concerning the data which are doing not come under to disclosure (item 201); disclosure of the data which are doing not come under to announcement (item 205); Use of state secrets (item 206); crimes against the allied state (item 211); armed revolt against the government (item 221); pogrom, plunder and slaughter (item 222); civil war (item 223); assignment of the political power or military command (item 224); slaughter (item 329); epidemic (item 334); a poisoning of water or a foodstuff. (Item 335); causing of death to the person from its consent (item 436); murder (item 434).

The former president of Somalia M.S.Barre, in the book known to Somalis «My country and my people» justified death penalty application to a number of economic crimes, he wrote: «bribe corruption, plunder of a state ownership and bias are a consequence of non-observance of laws. A unique way of the decision of these problems - inevitability of punishment. As other is not reserved, also a death penalty. Which it is meant - execution». [128] Unfortunately, we are forced to establish, that these problems are very actual for today. As corruption, especially concerning public finances follows from the monthly report of security council of the United Nations «, it is necessary to be pitiable». [129]

In Somalia the death penalty is provided for very wide range of crimes, and not only for the crimes which inevitable consequence is deliberate causing of death to the person at aggravating circumstances, but also for such acts, as concealment, forgery or destruction of certificates, or the documents, concerning safety of the Somali state (item 198); collecting of the data, concerning safety of the Somali state (item 199), etc. In this punishment as to the form of realisation of the criminal liability 100 % achievement of the purpose of private prevention and the requirement of item 44 of the Constitution of Somalia about its execution which is not contradicting feeling of humanity are combined.

We stand on that position, that now the death penalty should remain in the system of penalties in Somalia, as the form of protection of a society from the dangerous criminals, excluding relapse from their party and as a measure keeping from committing a crime. At the same time, it is necessary to reduce essentially number of crimes for which this form of realisation of the criminal liability will be established. Punishment in the form of a death penalty as means of restoration of justice should be provided only for the crimes which inevitable consequence is deliberate causing of death to the person at aggravating circumstances.

Universal experience shows, that during the various periods of history the death penalty was the form of realisation of the criminal liability almost in all countries. In 1863 Venezuela became the first country which has cancelled a death penalty. In the modern world in the last some decades many countries have cancelled this punishment. On death penalty reflexion in the law allocate four approaches to this form of realisation of the criminal liability: « 58 countries keep a death penalty within the limits of the law and practice (including the Palestinian autonomy); 95 countries have cancelled this kind of punishment; 9 countries have kept a death penalty as punishment for the crimes made in exclusive circumstances (for example, in a wartime); 35 allow to use it for usual crimes, but did not carry out execution last 10 years, having approved practice of failure of justice of executions or moratorium acceptance ». It is important to pay attention that« five countries apply a death penalty concerning offenders aged till 18 years at the moment of committing a crime. In some countries incidentally or the practice of extrajudicial executions which is falling outside the limits the official legal frameworks is regularly carried out. This list includes also some not recognised states with de facto control over the and dependencies ». Among 54 independent states of Africa, the recognised United Nations: 17 countries, have refused death penalty use; 24 countries have imposed the moratorium on a death penalty or did not apply it already at least 10 years; 13 countries use it as the punitive measure. [130]

In 2010 in Somalia have been executed more than 8 persons; in 2011 - 6 [131]. In 2012 - 6. In 2013 in Somalia sharp splash in executions, officially was observed

34 persons are established, at least, from them 19 executed in Puntlende -

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Semiindependent region of the country. [132]

The criminal law of Somalia supposes possibility of replacement of a death penalty alternative punishment in the form of imprisonment for the term from twenty till thirty years or for life (item 119 UK Somalia).

In UK Somalia is not present express indication about an interdiction of application of a death penalty concerning minors, or older persons. On the contrary, there is an example of application of this punishment concerning the person even not not reached age of the criminal liability. So at stadium in Kismayu (a province administrative centre Bottom Dzhubba) in 2008 13 tiletnjuju the girl have condemned under laws of Sheriyat and have publicly thrown stones. This business has caused a wide resonance in the world community. The girl went from a native city of Kismayu to Mogadishu to relatives and on road has been raped by three unknown persons. Parents of the girl have addressed to the authorities with the request to find and punish the guilty. However instead of the help the Islamic court recognised the girl guilty of illegitimate sexual relations and has sentenced to punishment in a kind pobitija stones. The children's fund of the United Nations then has declared, that the given incident underlines vulnerability of position of girls and women in Somalias which are exposed to violence and discrimination.

The analysis of norms of Sheriyat shows, that this execution was illegal at several levels. First, the police has declared, that the girl admitted and has repeated the recognition enough of times. Such recognitions should be given voluntary, and can be withdrawn. Secondly, in the majority of schools of Sheriyat, the recognition of the 13-flight girl is void, and in any shariatskoj to school, statements of the father and the recognition of the girl that it was the rapee should be

It is called into question (even if it was sufficient age and even if it actually has given grateful evidences). In the-third, according to norms of Sheriyat only married criminals can be sentenced to a death penalty, a category "hadd", and there are no signs of that the 13-year-old girl was married. [133]

Application of a death penalty concerning minors it is considered inadmissible for Somalia, the state which have accepted the secular legislation and aspiring to democracy. We suggest to enter restriction of application of a death penalty for persons more youngly eighteen years and persons is more senior eight-ten years, it is essential to reduce a circle of the crimes punished by a death penalty, having limited it only the crimes which consequence is the deliberate deprivation of life of the person.

Norms of Sheriyat, common law and secular criminal law are applied in Somalia, but there is no complete, functioning national legal system and there is no accurate interdiction of a death penalty, corporal punishments or lifelong imprisonment for minor offenders on all country.

One of the basic problems of application of a death penalty is that, agree UK Somalia if the person kills other person him punish a death penalty (item 434 UK Somalias). Alternatives here are not present any. Norms of Sheriyat, besides blood feud suppose for murder, or a full pardon guilty, or a repayment establishment (dijja). In case of repayment non-payment for blood, relatives of the killed can petition for its cancellation and death sentence removal. If causing of death to the person has occurred on imprudence indemnification is paid not guilty, and its relatives. The Supreme Court has considered the appeal on a sentence on business about murder konsteblja Radzhaba Abdullahi Mohammed. [134] court has sentenced the defendant - Abdullahi Hassana Dzhimale to payment of 100 camels, the repayment for a shelter konsteblja Radzhaba Abdullahi Mohammed. The Supreme Court has enacted to cancel earlier pronounced sentence the trial court, and has sentenced Abdullahi Hassana Dzhimale to death agrees item 434 UK Somalia, and item 19 of the Military criminal code of Somalia. [135]

Sheriyat laws should be applied only concerning the personal status, and each person should have the right of a choice in other questions. Sheriyat laws were applied in Somalia at the decision of the questions, concerning marriage, divorce, family relations, donations, inheritance and the will. [136]

In the Islamic states the death penalty is not cancelled because it follows from the Koran considering the purpose of this punishment in protection of a moral condition of Moslems and well-being of all community. We will notice, that punishment in the form of mortal punishment exists and in Japan, the country keeping the century customs, the traditions, the accepted way of life. We believe, that Somalia, despite acceptance secular UK and democratic principles of the West are not present sense to recede from traditional principles of Islamic morals and to cancel a death penalty. Practice of realisation of this form of the criminal liability will reflect, both wisdom of judges of Somalia, and structure, and dynamics of crimes for which it can be applied. In Somalia as it has been shown above, the number of sentences to a death penalty has the different tendency. Concerning a death penalty position I.M is close to us. Ragimova «the Societies which have refused this punishment, will return again to a question on its restoration, and those countries which have kept a death penalty till today, will even more be convinced of correctness of the position. For such conclusion exist religious, philosophical and legislative grounds». [137]

The law of Somalia on counteraction to terrorism of 2007 has expanded a circle of acts for which the death penalty is established. [138] According to item 7 of this law the persons making, acts of terrorism are punished by death, and their property comes under to confiscation.

In 2011 the number sentenced to a death penalty in Somalia was fifty, and is executed six. The representative of the Ministry of Justice on affairs of religions in Somalia, has explained, that all these persons who contain now in the chamber of condemned men belonged Al SHabab. That year one woman, has been sentenced to death that has sold "ammunition" Al - SHabab and, being as a part of terrorist group, has been pardoned by the president Sheikh Sharif Shejh Ahmed. [139]

The norm about an interdiction for a death penalty is already recognised by many member states of the United Nations, the Council of Europe, the European union, OSCE, the organisation of the American states. The world community has refused application of a death penalty and for the international crimes.

The death penalty is provided almost in all African states. So, for example, according to positions of the legislation of some the countries, the death sentence is not taken out concerning the person who have committed a crime is elderly till eighteen years or being in a condition of the limited responsibility, and also the pregnant woman (item 118 UK of Ethiopia), (item 27 UK of Sudan), (item 13 UK of Egypt), (item 25 UK of Kenya), (item 26 UK of Tanzania), (item 17 UK of Nigeria), (item 294 UK of Ghana), etc.

Item 94 UK Somalia says: «the Death penalty is executed by execution in prison or in any other establishment to belonging Ministry of Justice». Article defines procedure of reduction of punishment in the form of a death penalty and a place of its execution. It is a unique way which the death sentence can be lawfully executed in the country. It is necessary to notice, that the Ministry of Justice and Religious affairs (the former Ministry of the Pardon and Justice) can define an adjudgment place, but not forms of its execution.

In works of lawyers of the released countries the thought that the death penalty was expresses and continues to remain the important means of restraint of criminality. [140] but some practical and science officers prove position that a death penalty - too severe and antihumane measure which is not giving to possibility condemned to be corrected, it is inefficient as means of the general prevention, sometimes contradicts religious principles, does not give possibility condemned correction of a miscarriage of justice after sentence reduction in execution.

However in practice corresponding offers in a legislature are not brought, and heads of the country, apparently, do not consider, that now there are necessary social conditions for an abolition of capital punishment.

It is possible to notice, that in separate developing countries many death sentences are taken out and many of them are carried out, often even immediately. In Somalia the public opinion (98 % interrogated) is supported by death penalty application as punishment under criminal law. As a result of population interrogations it is found out, that the majority expresses in favour of its application for most grave crimes connected with deliberate causing of death to the person.

Generalisation of results of the interrogation spent by us has shown, that over 93 % of practical workers and 98 % of Somalis, consider this punishment fair for the grave crimes connected with murder of people at aggravating circumstances. We suggest to exclude this punitive measure from sanctions of the item of item 184, 185, 186, 196, 198, 199, 200, 201, 205, 206, 211, 221, 224 people not connected with the deliberate deprivation of life, to exclude its application concerning minor, pregnant women and the persons who have reached of eighty-year-old age. Thereupon we suggest to add item 94 UK Somalia ch. ch. 1, 2, 3 in the following edition: «the Death penalty can be established only as alternative to lifelong imprisonment and imprisonment for certain term for the crimes connected with the deliberate deprivation of life of the person at especially aggravating circumstances.

The death penalty is not appointed to minor, pregnant women, and the persons who have reached of eighty-year-old age.

The death penalty is not appointed to the person who has been given out to Federal Republic Somalia by the foreign state for criminal prosecution according to the international treaty to Federal Republic Somalia or on the basis of a principle of reciprocity if according to the legislation of the foreign state which have given out the person, the death penalty for the crime committed by this person is not provided or death penalty non-use is a condition of delivery or the death penalty cannot be appointed to it on other bases ». A part 1 item 94 UK Somalia in operating edition to consider as a part 4.

The following on severity punishment is imprisonment.

Imprisonment - one of universal and most often used kinds of punishments. Imprisonment finds various application not only on a range of appointed terms, but also on weight of a mode, methods, receptions and influence degree on prisoners. In UK

Somalias are established imprisonment for certain term and lifelong.

Lifelong imprisonment as the form of realisation of the criminal liability, it is established for fulfilment of some the most dangerous crimes provided in Special part UK Somalia. According to item 95 UK Somalia is a punishment is left in establishments with application of obligatory works. «Lifelong imprisonment is made with application of obligatory works». It means, that the prisoner should take part in the work defined for it by the authorities of prison. Lifelong imprisonment the prisoner can leave in any correctional facility, and also in the main prisons for Mogadishu. It already process of realisation of the given form of the criminal liability during which this form can change, for example, in a case conditionally - parole from enduring the punishment.

UK Somalia establishes rules of the separate maintenance for different categories of criminals. So in special establishments habitual or professional criminals leave imprisonment; the persons, suffering mental illnesses, deaf-mutes, the persons, suffering a chronic intoxication, an alcoholism or a narcotism, the persons who are drunkards or the person, conceived a liking for use of narcotics (item 136 UK Somalia),

Concerning minors, whose moral rehabilitation and social restoration, obviously, are more achievable and more necessary special establishments for enduring the punishment are provided. The law establishes, that they should leave imprisonment in establishments separately from what are used for full age prisoners, with the requirement that during free time from work they could be engaged in formation which mainly, is directed on their moral rehabilitation (item 137 UK).

Imprisonment for certain term. The higher limit of punishment for this or that crime always is underlined in the law. The lowest limit of imprisonment is provided or in concrete article of the Special part, or in norms of the General part of the criminal legislation depending on reference, sodejannogo to infringement or a crime. [141]

In Somalia imprisonment for the certain term, called by imprisonment is more often applied. A circle of the acts punished by imprisonment in the form of imprisonment, under the criminal legislation of Somalia rather wide. The minimum term of imprisonment in Somalia constitutes 5 days, and maximum - 24 years. Punishment in special penitantiary establishments, with obligatory works is left.

On materials of interrogation of administration of prison of of Mogadishu and acquaintance with correctional facility instruction. As of the beginning of 2015 in the places of confinement 2165 thousand people, [142] leaving various coercive measures in places of isolation from a society (a significant amount from them are persons in which relation, it is not taken out yet the final sentence) contained.

Regardless of the fact that the law has established serving of imprisonment with attraction condemned to obligatory works, it gives in the course of realisation of this punishment of the right, such, as on formation, playing sports, departure of religious practices and so forth by which significance of the powerful tool of morally-physiological restoration of their person is attached. At execution of imprisonment by the minor their training is obligatory, full age condemned can be trained at will if show abilities to it.

In UK Somalia position about the right of prisoners to fair compensation for the performed work (item 139 UK) according to item 36 of the Constitution and item 3 of the Labour code of Somalia is fixed. At the same time the works given to condemned possibility, studies and others urged to protect them from idleness, to accustom to participation in sotsialnopoleznoj activity.

Item 96 UK Somalia establishes the general minimum and maximum terms of imprisonment, and the judge cannot pronounce a sentence to the person for the term of imprisonment less than five days or more than 24 years for one crime.

Sanctions of norms of Special part UK Somalias providing imprisonment for certain term, can be two kinds: with instructions of only top limit (for example, for item 502 assignment), and with minimum and maximum instructions, for example, for death causing on imprudence on UK Somalia can be punished by imprisonment for the term from 6 months till 5 years (item 445 UK Somalia).

Rupture between minimum and maximum limits of punishment in the form of imprisonment in separate sanctions UK Somalia is, in our opinion, unfairly huge. So, for example, on ch. 1 item 437 UK Somalia "Attempted suicide" court can appoint punishment for the term from 5 days till 5 years of imprisonment. In the given sanction the top limit of awarding punishment exceeds bottom in 365 times. The sanction ch. 1 item 329 UK Somalia "Slaughter", provides for punishment in the form of imprisonment for the term from 5 days till 15 years, i.e. The top limit of punishment exceeds the bottom limit in 1095 times. In many sanctions UK rupture between bottom and top limits of punishment in the form of imprisonment constitutes Somalia 8 - 11 years. At realisation of the criminal liability with such sanctions the court does not have accurate criteria of a reasonable choice of the penal term, and it is guided by an estimation of all circumstances of the business, the developed outlook and practice. On our data, courts for similar crimes did not appoint

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Punishment in days, or one-two month. In the generalised materials of the criminal cases considered by vessels Benadira, provincial court Garove, Hargeisa the minimum term of imprisonment was equal to one-three years, and maximum 8-15. Thus it is necessary to underline especially, that courts, considering congestion of prisons on occasion, at appointment of punishments start with a principle of maintenance of restoration of the broken rights. So, on a number from the criminal cases studied by us about swindle courts instead of sentencing the defendant to long terms of imprisonment and payment of the stolen sum, enacts in a sentence, that the condemned will be in prison until will return sustained money. [143]

As we see, imprisonment quantity indicators in UK Somalia are established with the unjustified purposes of its application: too low minimum term - 5 days and too big rupture between minimum and maximum its limits in sanctions of some articles of Special part UK Somalia - from 5 days till 15 years (for example, item 329 item, 455, 456, etc. UK Somalia). It is offered to differentiate the minimum limit of the sanctions established for crimes and infringements. In item 96 UK Somalia words thereupon is offered of "5 days» to replace with words - «six months», to add item 96 with a part of the second of the following maintenance: «rupture between minimum and maximum limits of terms of the imprisonment established in sanctions of articles of the special part of the present Code should not exceed seven years».

In many developing countries (item 33 UK Djibouti, item 40 UK of Ruanda, item 107 UK of Ethiopia) including in Somalia, is observed the tendency to regular increase of a limit of term of imprisonment (in bolshej degrees maximum) for a number of concrete crimes. In a number of the countries also item 39, 138 «» UK Tanzania, item 125 UK of Yemen, item 62 item, 208 UK

Niger) during the insignificant period of time of the sanction for separate crimes (first of all directed against state security, economic, the armed robbery) increased repeatedly. Representatives of the governments and a legislature of these countries consider it as a compulsory measure in connection with difficult process of formation of national statehood and necessity of strengthening of crime control. The tendency to toughening of punishment in the form of imprisonment sometimes leads to an establishment in the legislation of identical sanctions for different in character and degree of the social danger of a crime that smoothes differentiation of realisation of the criminal liability so necessary in the criminal policy. [144]

The African states, including Somalias which now do not have sufficiently other measures of crime control, the centre of gravity in overcoming of this rather serious social harm transfer on criminal reprisal. Probably, proceeding from necessity of performance first of all problems of the general prevention, in the criminal legislation of the states of Africa the strongly pronounced tendency to an establishment was outlined in the law of more strict, than earlier, punishments for fulfilment of the big number of various crimes.

However only measures on punishment toughening for those or other concrete criminal displays hardly it is possible to solve a problem of efficiency of crime control. Pertinently to recollect words of the largest criminalist of past CHezare Bekkarija «One of the most effective means constraining crimes, consists not in cruelty of punishments, and in their inevitability». Efficiency of crime control is in direct dependence on inevitability of punishment for the committed crime and from time which passes from the moment of committing a crime before awarding punishment for it.

Application of severe punishments for dangerous crimes, obviously, should be combined with the attentive approach to the persons who have made minor offences.

Some western scientists believe, that punishment is not the only thing or the main means of crime control. For example, Norwegian criminalist N.Kristi in the work «Punishment or the resolution of conflict by intermediary» spent the following thought: «certainly the bad behaviour is unacceptable». However, he approved, that it is impossible to solve problems of a society by means of punishments. N.Kristi has put forward two approaches by which it is possible to be guided at the decision of a question on when it is necessary to react to fulfilment of bad, nasty act. The first approach was based on «a principle of the figure», the person who have made such act. Here the relation of citizens and a society concerning necessity of application of measures of influence completely coincides. The second approach is based on «an act principle» when the influence measure is expressed in the punishment which size is defined by weight of perfect act. [145]

Excessive cruelty of the criminal legislation can lead to public morality demoralisation, to the further growth of criminality in more and more severe forms.

Measures of criminal reprisal at all importance and necessity cannot be the main means of crime control for they are not capable to liquidate all reasons which cause fulfilment of crimes. In criminality eradication measures economic, political, ideological, cultural, and educational character as in crime control immeasurably bolshee value, than application of separate punishments, has change of public and political establishments should play a main role. [146]

Imprisonment, apparently, was, is and remains the most widespread form of realisation of the criminal liability and in the future. However, in our opinion, it is necessary to include in UK Somalia wider range of forms of realisation of the criminal liability, not connected with isolation guilty from a society and the persons directed on social rehabilitation, especially for people with problems of mental health and the persons who for the first time have made punishable act.

It is possible to approve, that imprisonment does not promote today achievement of the purpose of correction as it was supposed. In spite of the fact that prisons often give the chance to criminals of reception of formation, acquisition of an operational experience, suitable in the future life on freedom, dialogue in establishment with similar persons, absence of the appropriate control brings to nothing all efforts of the personnel and frequently promotes fulfilment of a new crime. Besides, it is difficult to begin a new life after an exit from prison, mental pressure is difficult for forgetting. The situation of civil war and confusion in Somalia complicates creation in the country of due system of rendering assistance to the persons released from punishment in their social rehabilitation.

Abuse of authority or the official position is one of most often made crimes in Somalia. The chairman of Supreme Court Ajdid Abdullahi Ilkohanaf during a meeting with lawyers and lawyers of the country, has sharply condemned abusings from law enforcement bodies in particular, police and prospecting services. He has declared, that taking into custody, and also the maintenance in places

Imprisonments during the long period of time of the persons who have not entered the conflict to the law, is law gross violation. [147]

Along with imprisonment such form of realisation of the criminal liability as the fine containing in the sanction of many articles UK Somalia as a punishment principal view and as it was marked above, in separate situations, at judicial discretion can be applied as in addition kind of punishment is extended to certain term in Somalia also.

The penalty can be appointed alternatively to other punishment, as for infringements, (item 514 item, 527, 528, abusing national legkoveriem, dangerous exhibiting of things, a collapse of buildings or other constructions, etc.) and for crimes, (item 250 item, 258, 386, abusing the official position in cases, specially not statutory, default of official duties on the occasion of leaving of the state post or the public service termination, assignment of ranks or awards, etc.), for example, to imprisonment, or in addition to other punishment. [148]

In item 97 UK Somalia the penalty maintenance is regulated:

1. Punishment in the form of the penalty consists in payment in the income of the state of a sum of money at the rate from 10 to 50,000 Somali shill.

2. For the crimes as which motive benefit has served, and the law provides only imprisonment, the judge can impose in addition the penalty at the rate from 10 Somali shill. To 20,000 Somali shill.

3. If the penalty ordered by the law appears insufficient by efficiency because of a financial condition of the criminal, the judge can increase the sum of the penalty appointed originally three times.

Feature UK Somalia is possibility of application of the penalty in cases, when it is not provided by corresponding article of Special part UK, (ch. 2 items 97 UK Somalia). Similar position contains in ch. 2 items 24 UK of Italy. The sums of the penalty established in sanctions of articles UK Somalia, are defined now in a court sentence on the developed practice in the size equivalent to US dollar for 1990 to correspond to the today's I will drop lives of Somalis.

In our opinion, it is a vestige of the old archaic legislation practically not podvergsheesja to any changes in general from the date of its acceptance. Thus, pravoprimenitelnoj experts specify once again lacks in necessity of introduction of recommendations about perfection of the criminal legislation.

Apparently the law gives a discretional law to the judge to impose in addition to punishment in the form of imprisonment the penalty in the certain size if as motive of committing a crime benefit has served. Thus it is not limited to distribution only on crimes against property, it extends and applied also concerning any crime when the criminal aspired to raise the financial condition or the property.

The penalty under the legislation of Somalia is established and for infringements. In item 99 UK Somalia, it is told:

1) Punishment in the form of the penalty for infringement consists in payment to the state of the sum not less than 2 Somali shill. And no more than 10,000 Somali shill.

2) If the statutory penalty is inefficient because of a good financial position of the criminal the judge has the right

To raise the penalty sum three times. Given article is similar to article 97 UK Somalia providing the penalty for crimes. Point 2 grants to the judge the right three times to increase the penalty sum if he decides, that the imposed penalty is inefficient because of a financial condition of the criminal. It is necessary to notice, that unlike ch. 2 items 97 UK Somalia, here do not exist a discretional law to impose the penalty for the infringements made from mercenary motives. In general, criminal code positions fix forfeitures for the committed crimes. So, for example, the insult is punished by imprisonment within one year or the penalty at the rate to 1,000 shillings (item 451 UK). One day of imprisonment is in that case equated to 25 shillings.

The law provides, that in case of punishment in the form of the proportional penalty, no maximum limit is applied. It means, that the maxima provided in item 97 and 99 are not applied when the law provides the proportional penalty for harm or a damage caused by a crime.

In case of penalty non-payment according to the law the outstanding sum is replaced with imprisonment from calculation, in particular, for 25 Somali shill. - one day of imprisonment (item 112 UK Somalia). Commutation in the form of imprisonment on the penalty can be carried out in some cases according to a discretional law of the judge. The law establishes the size of replacement in 25 shillings per every day of imprisonment. Thus, if the person is sentenced to twenty days of an imprisonment and the judge decides, that it will be possible to replace punishment with the penalty in this case the criminal should pay 500 shillings - that is 25 shillings per every day. It means still, that there are circumstances at which commutation calculation in 25 shillings per every day of punishment is necessary. If the sum of money appointed court is not paid, the court can take out definition about the inventory

Property if it, of course, is available. The sum received from its realisation, goes on debts repayment under the penalty. However much more often in case of non-payment of the penalty the court gives the order about application of punishment in the form of the imprisonment which term is estimated from specified above. Thus the court can reserve in advance in a sentence, that in case of penalty non-payment condemned will be, will subject to imprisonment for any term specified in a sentence. Actually there is, that in the presence of the big number of sentences to payment of the penalty a sphere of application of imprisonment, not only is not narrowed, and, on the contrary, in practice many from condemned to the penalty for insignificant crimes, finally, serve time in prison.

For penalty non-payment the considerable number of the condemned is deprived of freedom. Thus, many condemned are forced to leave imprisonment only because of the poverty. [149]

Many criminalists oppose replacements of the penalty with imprisonment, suggesting to appoint the penalty, proceeding from earnings convicted to resolve payment of a sum of money by instalments, to give convicted possibility to work on community works and to receive the sums necessary for penalty payment. Some Somali lawyers, in particular Hadzhi N. Nur Muhammad and Abshir Mousse hold the opinion, that punishment in the form of the penalty is reasonable alternative to imprisonment as it does not demand any expenses from the state, on the contrary, brings to it benefit, and the main thing relieves condemned from harmful influence of a prison life. Basically it is true, though and the penalty has minuses as, for example, this punishment quite often loses personal character - all family suffers economically. However, if to distract from these lacks, it is necessary to mean, that sentences to the penalty in Somalia often enough not only do not replace imprisonment, and

On the contrary, lead to that many from condemned to the penalty even for insignificant crimes, finally appear behind a prison lattice as they do not have means for penalty payment.

In our opinion, punishment in the form of the penalty is not enough effectual measures in following cases: when it is applied to rich for which threat by the penalty even in the considerable sizes happens deprived sense and when the penalty is appointed to the people, obviously incapable it to pay owing to beggarly conditions of their existence. Proceeding from it it is possible to draw a conclusion that the punishment institute sometimes with evidence shows absence of real equality of all citizens before the law.

With reference to Somalia it is necessary to notice also, that in the conditions of inflation - depreciation of money, national economy disintegration have led to essential decrease in an infliction of penalty, and the statutory sums of the penalty do not render desirable effect on criminality restraint. It is possible to tell in the affirmative, that the penalty has lost the value and to today practically is not appointed.

The penalty, in our opinion it is necessary to appoint on occasion as the influence supplementary measure to the guilty. To refuse the penalty as a punishment kind it is not necessary. It is necessary to establish the reasonable sums of the penalty and possibility of its payment by instalments, but to appoint to provide it in the law only as additional punishment for crimes of a mercenary orientation. At the same time has ripened necessity of inclusion in ch. ch. 1, 2 items 91 UK Somalia other forms of realisation of responsibility both for crimes, and for infringements, for example, obligatory works with payment of their work and with deduction from 15 to 25 % from the earned sum.

In spite of the fact that penal actions are provided in many articles of Special part UK Somalia, their application is limited only by a small number of the condemned. In Somalia judiciary practice on

To application of penal actions should correspond to a principle of an individualization of responsibility. We believe, that development of the criminal legislation of Somalia should go now on a way of introduction of punishment in the form of obligatory works, and toughenings of fines for the rich.

The penalty is extended of property kinds of punishment. However in the criminal legislation of the separate countries it is provided other version of forfeiture. For example, the criminal legislation of Norway besides the penalty provides one more forfeiture, so-called forelegg (Forelegg). Forelegg about the same punishment, as the penalty. The difference consists that the criminal is offered to pay the penalty without carrying out of proceeding and without registration in police files. Forelegg usually occurs in less serious affairs, than penalties, for example, if will be caught by the bus or in the underground without the ticket. [150] general rule, appointments forelegga is fixed in the Code of Criminal Procedure of Norway in item 255-259 item.

The criminal code of Somalia provides a wide spectrum of additional punishments to which carries: the debaring on post employment in official bodies; prohibition to be engaged in a certain trade or craft; a legal interdiction; stay of employment by a certain trade or a craft (ch. 2 items 90, ch. 2, 3 items 92) and as it was already marked, the penalty in specially statutory cases.

The retaliatory element of the maintenance of additional punishments supplements restriction of the rights and freedom of the person. Their maintenance consists - in restriction of the labour, civil rights, causing to the person moral

The sufferings connected with loss, for example, of the important work for it, loss of skills in a trade, etc.

So, the debaring on post employment in official bodies can carry, both constant, and a temporality (item 101 UK Somalia). If this punishment is appointed in addition to imprisonment its execution for the term specified in the law will begin after punishment departure. It is natural, that the person in the places of confinement cannot occupy a post in official bodies. And even, if the person has been deprived the right to post employment to certain time after proprocession of the term equal to term of left imprisonment plus departure of this additional punishment, it already for various reasons cannot (at long terms) to return to a post. Besides, according to ch. 2 items 101 UK Somalia an interdiction for post employment in official bodies are involved by deprivation of the person: the rights to vote or be the selected works and any other political right; b) any public post and any unessential public service, and it is equal ranks of the official who is carrying out public service;) the tutorial right or the right to be someone's legal representative, even time and the rights to everything that concerns guardianship or to position of the legal representative; d) the academic degrees, ranks, or public honourable differences;) the right to grants, pensions and other sums which are released by the state or any public organisation; f) any honourable right connected with a post, service, degree, a title, a rank, the distinctions specified in the previous points; g) abilities to receive or get any right, a post, service, a rank, degree, a title, an award and the medal of difference specified in the previous points.

UK Somalia establishes terms of additional punishment in the form of an interdiction for employment condemned the state posts depending on the term, the imprisonment appointed to the person. So, appointment of imprisonment for the term of not less than three for a crime attracts an interdiction for employment of the state posts for a period of five years. Appointment of lifelong imprisonment or for the term of not less than five years attracts a constant interdiction. The recognition of the person the recidivist or the professional criminal involves a constant interdiction for employment of the state posts (ch. 2 items

102 UK Somalia)

Will lock to be engaged in a certain trade or craft deprives condemned of possibility to carry out, for the period of a work interdiction, by a trade, craft to be engaged in domestic industries, commerce or certain activity in which relation any special permission, the certificate is required, the sanction or the licence and an interdiction involves cancellation of any permissions, certificates, sanctions or licences. Duration of such interdiction can be not less than one month and no more than five years, except cases, statutory (the item

103 UK Somalia).

The interdiction for a trade or craft follows as result of charge for a crime, but not for infringement. Such interdiction is established not on all trades, or crafts, but only on what are connected with delivery of the special permission, the certificate, the sanction or the licence. To such trades, trades of the lawyer, the doctor, the pharmacist, the dentist, the architect, the engineer, the veterinary surgeon concern, for example, etc.

The temporary interdiction deprives of the condemned: possibilities to get, carry out or have the specified rights, posts, service, a rank, degrees, titles a medal;

Term of time prohibition cannot be less than one year, and exceed five years (item 101 UK).

The interdiction can be expressed in two forms - time or constant. Both forms of an interdiction have result deprivation of the same rights, but the temporary interdiction is limited in time, term from one till five years.

It is necessary to notice, that as the interdiction is additional punishment, it is imposed by operation of law, as result of charge. Hence, it follows automatically and the judge has no discretional law not to impose an interdiction for post employment.

UK Somalia provides a legal interdiction as additional punishment.

1. Any person sentenced to lifelong imprisonment, falls under a legal interdiction.

2. Any person deprived of freedom for a crime for the term of not less than five years falls under a legal interdiction for punishment period of validity. The legal interdiction automatically follows charge in committing a crime, where an imprisonment term of more than five years (item 105 UK Somalia).

There are two kinds of a legal interdiction - constant and temporary. The constant legal interdiction is applied only in case of lifelong imprisonment. The temporary legal interdiction is applied for the term equal to appointed punishment. The legal interdiction means deprivation of possibility of management, the order property. [151] valid rights and privileges at the person who are under a legal interdiction, remain, that exists in the Italian Civil code.

It is necessary to notice, that in UK Italy the list of additional punishments also contains: prohibition to occupy public posts, will lock to be engaged in a certain trade, deprivation of capacity owing to the law, deprivation of the parental or tutorial power. So it agree ch. 2 and 3 items 32 UK of Italy, condemned to life imprisonment, and sentenced to imprisonment for the term of not less than five years, are under a legal interdiction and loses the parental power over children and the matrimonial power over the wife. This position is absent in the criminal code of Somalia that speaks its major role in a family under a common law. [152]

It is necessary to notice, that additional punishment in the form of a legal interdiction if it time, operates only for punishment. In other words, if the person is sentenced, for example, under cumulative offences to imprisonment for a period of 25 years and, having left only seven years of the appointed term, has been pardoned, it still is under a legal interdiction other 18 years.

Above told allows to draw a conclusion that punishments, being the most widespread forms of realisation of the criminal liability, reflect principles of its differentiation and an individualization, both during their appointment, and in execution.

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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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