APPROACHES TO THE CONCEPT OF EXEMPTION FROM LIABILITY OR PENALTY WITH THE APPLICATION OF COMPULSORY MEASURES

Abstract

This article highlights the content of approaches to the concept of exemption from liability or penalty with the application of compulsory measures to minors. Also compulsory measures are considered as a system of criminal-legal measures and measures of state compulsory. However, the peculiarities of compulsory measures are explained. Foreign experience of application of compulsory measures to minors is analyzed.

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Ametova Aysulu Mnajatdinovna. (2024). APPROACHES TO THE CONCEPT OF EXEMPTION FROM LIABILITY OR PENALTY WITH THE APPLICATION OF COMPULSORY MEASURES. The American Journal of Political Science Law and Criminology, 6(11), 85–88. https://doi.org/10.37547/tajpslc/Volume06Issue11-12
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Abstract

This article highlights the content of approaches to the concept of exemption from liability or penalty with the application of compulsory measures to minors. Also compulsory measures are considered as a system of criminal-legal measures and measures of state compulsory. However, the peculiarities of compulsory measures are explained. Foreign experience of application of compulsory measures to minors is analyzed.


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THE AMERICAN JOURNAL OF POLITICAL SCIENCE LAW AND CRIMINOLOGY (ISSN- 2693-0803)

VOLUME 06 ISSUE11

85

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PUBLISHED DATE: - 25-11-2024
DOI: -

https://doi.org/10.37547/tajpslc/Volume06Issue11-12

PAGE NO.: - 85-88

APPROACHES TO THE CONCEPT OF
EXEMPTION FROM LIABILITY OR PENALTY
WITH THE APPLICATION OF COMPULSORY
MEASURES


Ametova Aysulu Mnajatdinovna

Independent researcher at Karakalpak State University named after
Berdakh, Uzbekistan

INTRODUCTION

Legal literature presents various approaches to the

understanding of compulsory measures and their

content. One perspective on compulsory measures
is a system of criminal law measures that the court

applies to young offenders with the intention of
accomplishing the objectives of criminal

punishment by utilizing the best possible blend of
pedagogical impact and state methods of state

coercion.
Compulsory measures, on the other hand, are

regarded as state coercive measures mandated by
the criminal law and are used to juveniles

convicted of crimes of low social risk and non-
severe crimes where their correction is achievable

without criminal liability or penalty (punishment).

Compulsory measures are characterized by the

following:
Article 87 of the Criminal Code states that

compulsory measures can only be used against
minors who have committed a crime;
compulsory measures are a form of state coercion

that can only be implemented on behalf of the state

and are the outcome of a public-legal assessment of
the act as criminal;
the content of compulsory measures indicates that

they are educational in character. Their goal is to

correct the juvenile offender by using a
combination of pedagogical pressure and

persuasion techniques. Persuasion is the first
factor used to influence the minor during the

RESEARCH ARTICLE

Open Access

Abstract


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implementation of these measures, as it conveys to

him or her the negative assessment of the conduct
and the inadmissibility of continuing socially

dangerous behavior;
compulsory measures consist in restricting the

rights and freedoms of a minor due to the nature of

their coercive effect, and such restriction is allowed

when setting special requirements for the minor's
behavior;
compulsory measures are included in other

measures of criminal-legal nature. The second part
of Article 2 of the Criminal Code stipulates that the

Code determines grounds and principles of
liability, socially dangerous acts to be recognized as

crimes, as well as establish penalties and other
legal measures of legal influence that may be

applied to persons, who committed socially

dangerous acts. ‘Other legal measures’ in this

context refer to compulsory measures;
according to its legal nature, coercive measures are

an alternative measure to punishment, and the
alternative nature of these measures is manifested

in the content of the obligations and restrictions
imposed on the minor and their difference from

punishment. In addition, it is also manifested in the
court's discretion, that is, it is manifested in making

a decision on sentencing, imposing a penalty or

exempting a minor from criminal liability or
punishment;
the alternative of compulsory measures to

punishment implies a shift in response to juvenile
delinquency from coercion to education.
However, the current legislation does not specify

the definition of compulsory measures applied to

minors. Different authors have expressed different
opinions on the concept of compulsory measures

applied to minors.
A.Magomedova came to the conclusion that:

“compulsory educational measures are state

compulsory measures applied by the court and
have a corrective and educational effect on a minor

who has committed a less serious, moderate and

serious crime, which are not considered criminal
penalty (punishment) (or are not subject to

criminal punishment) and are imposed during the
release from criminal liability or penalty

(punishment) for the purpose of its correction as

well as the prevention of new crimes”[1]. Of course,

here it is necessary to take into account that the

author made this proposal based on Russian
criminal law. In his opinion, the system of

compulsory measures of an educational nature is
significantly different from the system of criminal

sanctions due to the shift of the center of gravity to
the educational means rather than the punitive

ones. Compulsory measures are strictly personal in
nature; can only be appointed by the court on

behalf of the state; performance is mandatory;

according to its content, it is considered
educational and aimed at the social adjustment of

adolescents.
Persuasion and, if required, coercion are two

methods that can be used to upbring minors,

according to I.N. Tyurina. The analysis of the
current legislation shows that young offenders are

increasingly being raised under compulsory
circumstances.

She notes that “Other forms of education other than

coercion have demonstrated their ineffectiveness.

But it is understood as certain disciplinary-
pedagogical means applied to minors who, due to

the psychological characteristics of the person, still
have the opportunity to change their behavior in

the direction approved by society”[2].

Understanding and analyzing the essence of

mandatory educational impact measures as a
separate criminal-legal institution implies an

understanding of their legal nature and
relationship with other institutions of criminal law

- criminal liability and penalty (punishment).
The state's criminal-legal response to juvenile

offenses can take the shape of mandatory

educational effect measures. This is explained by

the fact that the studied measures are combined in
criminal legal norms. However, the process of

bringing a minor to criminal accountability is
essentially repeated in the process of assigning

mandatory educational measures, from the start of
a criminal prosecution to the issuance of a court

decision.
Since compulsory measures are used against

minors for committing crimes and are not


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classified as a form of penalty (punishment) under

Article 43 of the Criminal Code, they are, in our
opinion, a manifestation of criminal liability

because they are used alongside other forms of
influence that are not criminal in nature.
Therefore, the state's response to a minor's crime

may take the shape of criminal liability, which is

demonstrated by the use of compulsory measures
against the minor. Therefore, using compulsory

measures on juveniles is a particular kind of
criminal liability.
O.A.

Anfyorova

demonstrates

compulsory

measures applied to minors as a special form of
exemption from accountability. According to her,

“when released from criminal liability, a person is

found guilty of the committed act. Otherwise, the

exemption from criminal liability will lose its

meaning. According to Article 8 of the Criminal
Code, in order to exempt a person from criminal

liability, the basis of which is the commission of an
act containing all the elements of a crime, a decision

must be taken by the div (subject) that has given
the right to release a person who has violated the

state criminal law from the legally unfavorable
consequences (and as a result, from punishment)

of criminal behavior, such as an official charge”[3].

According to the aforementioned, compulsory

measures can be assessed as state-imposed
measures used to improve moral behavior in

minors who have committed crimes but do not
qualify as criminal punishment.
Analysis of the legislation of other jurisdictions

revealed that varied strategies are used when
applying coercive measures on minors. E.V.

Povodova specifically displayed the following as a
foreign experience:[4]
There are no laws requiring compulsory education

for minors in Spain, Denmark, Norway, Australia,

Argentina, the Republic of Korea, Japan, or the
Netherlands. In these countries, the criminal

liability of minors is carried out on general grounds
and in general forms based on the principles of

individualization for subjects of all age groups.
The use of coercive measures against minors as a

form of security measure in France regulated by
non-criminal legislation.

According to German criminal law, educational

influence on a minor who is guilty of committing a
crime is not part of the issues to be resolved by

criminal legal means and is not always the subject
of court proceedings.
Educational measures applied to minors are

presented differently in the criminal legislation of

different countries:
a) as security measures, they are applied to minors

who do not have the characteristics of a criminal

subject or who are not subject to criminal liability:
Turkish Criminal Code (Article 53 and Part 2 of

Article 58); Criminal Code of Sweden (Chapter 31,
Article 1), Criminal Code of the Republic of San

Marino (Articles 124, 128 and 131).
b) as a form of state guardianship or enhanced

home (family) control, which are specified in the
Criminal Code of the People's Republic of China

(Part 4 of Article 17). Persons under the age of
criminal liability are subject to home measures or

state education. According to the Bulgarian Civil
Code (Part 2 of Article 32), educational measures of

the same quality are applied to minors under the
age of criminal liability (up to 14 years of age).
c) as a form of implementation of criminal liability,

compulsory educational measures are mentioned

in the Polish Criminal Code. According to this, when
someone between the ages of 17 and 18 commits a

minor offense, the court may substitute
educational measures for punishment as a means

of enforcing criminal liability. They are given
therapy, education, or corrective measures in place

of punishment (paragraph 4 of Article 10).
Educational measures are given criminal-legal

importance under the Swiss Criminal Code.
Measures of educational influence used to juveniles

as criminal-legal coercive measures are part of the

laws of “close” foreign nations, including the

Criminal Code of Russian Federation.
For example, according to the Criminal Code of the

Republic of Tajikistan (Article 89), the use of

compulsory measures of an educational nature is

considered a form of release of minors from
criminal liability. Pursuant to the Criminal Code of

the Republic of Latvia (Part 2 of Article 59 and
Article 66), it is a special type of exemption from


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punishment for minors. The criminal codes of

Republic of Estonia (Article 10), Republic of
Moldova (Part 2 of Article 54, Article 93), Republic

of Kyrgyzstan (Articles 83, 85), Georgia (Articles
90-97), Republic of Azerbaijan (88, 89 -articles),

and Ukraine (Articles 97 and 105) consider the
compulsory measures in two contexts: a) as special

types of discharge /exemption from criminal
liability, b) as exemption from penalty

(punishment).
Under the Criminal Code of the Republic of Belarus,

compulsory educational measures are accepted as
a criminal-legal coercive measure that takes the

place of punishment.
Based on the analysis of legislation and literature,

the following author's definition of compulsory

measures against minors was developed:

“Compulsory measures applied to minors are

measures with non-criminal impact applied by the
court against a minor who commits a first-time

crime with a low social risk and not a serious

crime”.

Criminal legal norms, which include provisions on

the release of minors from criminal responsibility

or penalty with the use of compulsory measures, as
well as the issues related to criminal-procedural

norms corresponding to them are important in
observing the rights and legal interests of the

minor as a person. Exemption from criminal
liability or punishment in connection with the

application of compulsory measures should be
appropriate when not only there is no need to

apply a criminal punishment, but also when there
are no grounds for other types of such exemption

(grounds provided for in Articles 64-76 of the
Criminal Code).
Therefore, since the exemption from liability

provided for in Part One of Article 87 of the

Criminal Code does not correspond to the types of
exemption from liability provided for in Articles

64-68 of the Criminal Code, it would be correct to
assess the special type of exemption from liability

of minors (as provided for in Part One of Article 87
of the Criminal Code) as other measures of legal

influence provided for in Article 2 of the Criminal
Code. In this regard, it is proposed to supplement

Article 87 of the Criminal Code with Part One of the

following content:

“Minors who have committed a crime may be

released from liability without the application of

punishment and other criminal-

legal measures”.

REFERENCES
1.

Magomedova A.M. Development of compulsory

educational measures in criminal law. Abstract
of dissertation for the degree of candidate of

legal sciences. Makhachkala. 2006. p. 6.

2.

Tyurina I.N. Compulsory educational measures

as a type of release of minors from criminal
liability and punishment: criminal-legal and

criminological aspects. Abstract of the
dissertation for the degree of candidate of legal

sciences. Krasnodar 2016. p. 13-14.

3.

Anferova O.A. Problems of termination of

criminal case (prosecution) with application of
compulsory educational measures to minors.

Abstract of dissertation for the degree of
candidate of legal sciences. Volgograd 2003.

pp.10-11.

4.

Povodova E.V. Compulsory measures of

educational influence (problems of theory and

legal regulation). Abstract of the dissertation
for the degree of candidate of legal sciences.

Moscow 2005. p. 16-17.

References

Magomedova A.M. Development of compulsory educational measures in criminal law. Abstract of dissertation for the degree of candidate of legal sciences. Makhachkala. 2006. p. 6.

Tyurina I.N. Compulsory educational measures as a type of release of minors from criminal liability and punishment: criminal-legal and criminological aspects. Abstract of the dissertation for the degree of candidate of legal sciences. Krasnodar 2016. p. 13-14.

Anferova O.A. Problems of termination of criminal case (prosecution) with application of compulsory educational measures to minors. Abstract of dissertation for the degree of candidate of legal sciences. Volgograd 2003. pp.10-11.

Povodova E.V. Compulsory measures of educational influence (problems of theory and legal regulation). Abstract of the dissertation for the degree of candidate of legal sciences. Moscow 2005. p. 16-17.