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5. Гармаев Ю. П. Невозвращение из-за границы средств в иностранной валюте (уголовно-правовая, криминалистическая и оперативно-розыскная характеристика, основы методики расследования)/Отв. ред.: Образцов В. А. - М.: Юрлитинформ, 2001. - 176 с.
Turgumbayev Marlen Yerlanovich, al-Farabi Kazakh National University, Master of Legal Sciences, PhD student E-mail: marlen@ai-line.net
Punishment in the Islamic law
Abstract: On the basis of analysis and generalization of professional literature, the article studies the issue of definition of punishment and reveals typical traditional tendencies in the Islamic law when defining the goals of punishment.
Keywords: Islamic law, crime, punishment, goals of punishment
There are different definitions of punishment in the Islamic criminal and legal doctrine. For instance, Ahmad Fatkhi Bakhnasi writes that punishment is a pre-established retribution for the violation of interdictions pointed out in the law (he considers that the law is all sources of the Islamic law including the Quran, the Sunna, ijma etc.) in order to prevent the commitment of crime by the convicted or other persons [1, 175].
Such definition of punishment occurs in the works of most Arabic authors. Ali Abdel-Kader El-Cajvadzhi notes that punishment is a retribution defined by law and appointed by court, the idea of which lies in deliberate inflicting of pain to another person convicted of the commitment of crime [2, 309-310].
Ibrahim Kilani thinks that punishment is a retribution or penalty executed by state authorities for the violation of Sharia norms and crime is a wrong action prohibited by Allah [3, 77].
According to a Syrian lawyer Mahomed Al-Fadhel, punishment is a penalty set by law and applied on behalf of the state toward a person whose guilt has been established and who deserves the punishment for the commitment of crime under the law [4, 373].
Algerian author Iskhak Ibrahim Mansur reckons that punishment is a penalty established by law and appointed by court toward a person convicted of the commitment of crime, the idea of which lies in inflicting suffering on this person, limiting their rights and freedoms [5, 129-130].
Similar position is taken by Dzhundi Abdel Malek, who also believes that punishment is a penalty imposed on a criminal for the benefit of the society; it is pain inflicted on the criminal for the violation of law regulations [6, 85].
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Thus, it can be noted that Islamic traditional criminal law is a complex social phenomenon that is in close relation with the Islam, but at the same time it’s not connected to it. The Islamic criminal law is viewed as a judicial phenomenon that is related to legal but not religious system. In the respect, the norms of the Islamic criminal law are different from religious rules of behavior as they are secured by the compulsory force of the state. Having said that, the Islamic law closely cooperates with religious and moral norms as well as customs in the unified system of religious and regulatory control. The above said enables to conclude that punishment under the Islamic criminal law is primarily a sacral phenomenon; it is a result of divine revelation granted to people by Allah through the prophet Mohammed.
Punishment is related to penalty in its essence and goal. Penalty, earthly recompense, retribution for the committed evil is the essence and content of punishment in the Islamic law: the victim and the society should be revenged to restore the infringed justice. Penalty, recompense, retribution as intermediate goal is observed in the works of many Muslim authors [1, 175; 2, 309-310; 4, 67; 5, 129-130].
According to some authors, penalty creates required conditions for achievement of other goals and, first of all, the goal of crime prevention. Dzhundi Abdel Malek considers that « punishment is indissolubly related to the infliction of pain on the criminal; although, it (pain) isn’t the goal of punishment. The pain is inflicted on the criminal for the sake of achievement of the ultimate goal of punishment, i. e. protection of the society and securing of social order safety. The ultimate goal of punishment is different from actual goals, which lie in the prevention of recidivism (special prevention) and keep other people from committing the crime (general prevention).
Punishment should balance the achievement of both goals so that one of them is not sacrifices for the sake of achievement of the other one. Special prevention is achieved by way of intimidating the criminal, their correction or exclusion from the society, if it’s not possible to correct them (it is understood as death penalty or life imprisonment), and general prevention is achieved by way of intimidating» [6, 123-124]. In our opinion, saying «pain» the author means penalty and considers it as means of achievement of other goals of punishment.
Ali Abdel-Kader El-Cajvadzhi views the goal of punishment as retribution defined by law and appointed by court, which lies in the deliberate infliction of pain on a person convicted of the rime commitment. Pain (penalty) is not the goal itself and it acts as means (intermediate goal) to achieve other goals of punishment. Main goal is the prevention of crime. It is achieved with the help of more concrete goals such as performance of justice, general and special prevention and correction of a criminal. Among all possible goals of punishment, he sees ultimate goal of punishment in the correction of a criminal and other goals are secondary toward this ultimate goal [2, 309-310].
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According to Mahmoud Najib Husni, crime is an attempted violation of justice as generally accepted social value on the one side and attempted violation of sense of justice in individuals, on the other side. Both aspects of injustice caused by a criminal attempt should be eliminated by punishment. Punishment should restore justice as social value and satisfy social feelings that demand its application [7, 197]. The author differentiates between ultimate and intermediate goals of punishment. The ultimate goal of punishment is protection of rights and interests safeguarded by criminal legislation and intermediate goals, according to the author, are the restoration of justice (moral goal of punishment) and prevention of new crimes commitment by both the criminal and other people (utilitarian goal).
Mahomed Al-Fadhel distinguishes such goals as protection of interests of the society aimed at prevention of crime commitment by a person who has committed a crime earlier. Retribution, punishment applied to a person who committed crime, is correctional impact on the convicted and other members of the society. Another goal distinguished by the author is so-called moral goal, which lies in the restoration of social justice [8, 70].
The goal of general prevention lies in the prevention of commitment of crimes by other people who can commit it. It is presupposed that even the fact of application of punishment toward a person who committed crime should have preventive impact on other citizens. In the theory of criminal law there isn’t unity of opinions regarding who is affected by punishment from general prevention point. According to the prevailing point of view, general prevention effect of punishment is only addressed to those people who are inclined to commit crime. Application of punishment toward the convicted mainly affects law-abiding citizens from the correctional point; it creates the conviction that such actions are criminal and forms negative attitude to them.
Muslim lawyers emphasize two main goals of punishment: general prevention and special prevention, which are opposed to one another by some authors. For instance, according to Abdel-Kader Auda reckons that «punishment under Sharia has two opposite goals. One goal is general prevention: the attention is paid to prevention of crime and not to the personality of a criminal. The other goal is special prevention, which is centered on the personality of a criminal rather than crimes or crime prevention. The Islamic law absorbed two opposite goals and tried to remove the objections as follows: protection of the interests of the society should be ensured when appointing any punishment. Hence, when committing crimes touching the interests of the society, the personality of a criminal is ignored and when committing other crimes, the personality of a criminal is taken into account when the punishment is appointed by court. In the last case the goal of punishment is special prevention» [9, 274-275].
The author’s idea of preventive value of punishment is questionable because the society is protected in case of special and general prevention.
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At the same time, the approach of determination of the goal of punishment depending of the type of punishment can be observed in the Islamic criminal and legal theory. Most Islamic law scientists distinguish three types of punishment: 1) «hadd» («hud-dud») — punishment (punishments) imposed for crimes committed against Allah; 2) «qisas» — retribution of uniform effect and 3) «tazir» — punishment the type of which is established by the judge.
Punishments for the commitment of crimes belonging to «huddud» and «qisas» category have the goal of general prevention. The other group of punishments imposed for the crimes of «tazir» category has the goal of special prevention.
In the Islamic criminal and legal literature there is also interesting approach to determination ofgoals of punishment on the assumption of those values, which are protected by the application of punishment. In accordance with the norms of the Islamic law, the punishment is aimed at protection of five main values of Islam — religion, life, mind, further generations and property, which act as main obj ects of protection of the Islamic law.
Thus, punishment under the Islamic criminal law has a goal to restore social justice, protect morality, material and religious interests of the society and its members, and regulates the relations between society members, relations of a Muslim with Allah and law norms.
References:
1. Ahmad Fatkhi Bakhnasi. Punishment by the Muslim right//Tsit. on: Muslim Law. Main doctrinal works. XIX - XX Eyelid/Lane with the Arab. In 3 vol. V. 3: Criminal law. Criminal trial. Judicial system. - Tashkent. - 1998.
2. Ali Abdel-Kader El-Cajvadzhi. Criminal law. General part. - Beirut. - 1994.
3. Ibrahim Kilani. The doctrine about Muslim Arab ideas//Tsit. on: Muslim Law. Main doctrinal works. XIX-XX Eyelid/Lane with the Arab. In 3 vol. V. 1: Right sources. State law. - Tashkent. - 1998.
4. Mahomed Al-Fadhel. General principles of criminal law. - Damascus. - 1978.
5. Iskhak Ibrahim Mansur. Short sketch on criminology and criminal law. -Algeria. - 1982.
6. Dzhundi Abdel Malek. Criminal and legal encyclopedia//Tsit. on: Muslim Law. Main doctrinal works. XIX -XX Eyelid/Lane with the Arab. In 3 vol. V. 3: Criminal law. Criminal trial. Judicial system. - Tashkent. - 1998.
7. Mahmoud Najib Husni. Criminal law. The general part//Tsit. on: Muslim Law. Main doctrinal works. XIX -XX Eyelid/Lane with the Arab. In 3 vol. V 3: Criminal law. Criminal trial. Judicial system. - Tashkent. - 1998.
8. Mahomed Al-Fadhel. General principles of criminal law//Tsit. on: Muslim Law. Main doctrinal works. XIX -XX Eyelid/Lane with the Arab. In 3 vol. V 3: Criminal law. Criminal trial. Judicial system. - Tashkent. - 1998.
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9. Abdel-Kader Auda. Comparative analysis of secular and Islamic criminal law// Tsit. on: Muslim Law. Main doctrinal works. XIX -XX Eyelid/Lane with the Arab. In 3 vol. V 3: Criminal law. Criminal trial. Judicial system. - Tashkent. - 1998.
Yatsyk Tatyana Petrovna, National University of the State Tax Service of Ukraine, candidate of juridical sciences (Ph. D.), Associate Professor of Department of criminal law, process and criminalistics E-mail: zvezda_Jtp@rambler.ru
Use of experience of interaction of tax authorities of foreign countries with mass media and the public in activity by the State Tax Service of Ukraine
Summary: This article considers a current state of interactions oftax authorities with mass media in foreign countries, explaining its value as the practician, in introduction in activity of bodies of the State Tax Service of Ukraine with mass media, ways of improvement of interaction of the specified bodies on the basis of foreign practice are offered.
Key words: interaction experience, the tax authorities of foreign countries, the State Tax Service of Ukraine, the media, the practice activities.
The new information era, democratic principles which are proclaimed in the PostSoviet states provide that the citizen as the main participant of the state processes has to be rather informed for control over imperious policy. Access to information and comprehensive publicizing of processes in the state have to provide specially created structures at public authorities, local government and the regional power, and also mass media [1].
The analysis of world experience of the relations of authorities with the public shows that a certain improvement of the Ukrainian legislation concerning openness of the power not only regarding addresses of citizens or mass media to public authorities is necessary. Practice of dialogue of the power and society around the world testifies to traditions of the obligatory reporting of authorities about the activity irrespective of existence of inquiries and addresses of the citizens, obligatory informing of citizens on its current activity.
At present providing information on activity of authorities to citizens is carried out through the press centers of public authorities by periodic publication on the official sites of press releases, messages on actions of public authorities, holding press conferences and briefings.
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