THE USA JOURNALS
THE AMERICAN JOURNAL OF POLITICAL SCIENCE LAW AND CRIMINOLOGY (ISSN- 2693-0803)
VOLUME 06 ISSUE11
85
https://www.theamericanjournals.com/index.php/tajpslc
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
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
86
https://www.theamericanjournals.com/index.php/tajpslc
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
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
87
https://www.theamericanjournals.com/index.php/tajpslc
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
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
88
https://www.theamericanjournals.com/index.php/tajpslc
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.
