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органах внутренних дел, совершенствования форм и методов профессионального отбора кандидатов на обучение. В настоящее время профессиональный психологический отбор во всех развитых странах мира входит в составную часть комплектования органов внутренних дел.
Список литературы
1. Михайлов В.И. Актуальные вопросы профессионального отбора кадров на службу в органы внутренних дел // Российский следователь. 2014. № 9. С. 48 - 51.
2. Бодров В.А. Психология профессиональной пригодности. Учебное пособие для вузов - М.. ПЕР СЭ, 2001 - 511 с - (Современное образование) [электронный ресурс] - Режим доступа. http://www. law.vsu.ru/structure/criminalistics/books/bodrov_psy_ prof.pdf
3. Приказ МВД России от 31.03.2015 № 385 «Об утверждении Порядка организации подготовки кадров для замещения должностей в органах внутренних дел Российской Федерации» [электронный ресурс] - Режим доступа. -http://base.consultant.ru /cons/cgi/online.cgi?req=doc;base=LAW;n=179599
4. Приказ МВД России от 12.03.2015 № 321 «Об утверждении Порядка и условий приема в федеральные государственные организации, осуществ-
ляющие образовательную деятельность и находящиеся в ведении Министерства внутренних дел Российской Федерации» [электронный ресурс] - Режим доступа. - http://base.consultant.ru /cons/cgi /online.cgi?req=doc;base=LAW;n=177744
5. Приказ МВД России от 18.07.2014 № 595 «О некоторых вопросах поступления граждан Российской Федерации на службу в органы внутренних дел Российской Федерации» [электронный ресурс] - Режим доступа. http://base.consultant.ru/cons/ cgi /online.cgi?req=doc;base=LAW;n=169086
6. Федеральный закон от 30 ноября 2011 г. № 342-ФЗ «О службе в органах внутренних дел Российской Федерации и внесении изменений в отдельные законодательные акты Российской Федерации» [электронный ресурс] - Режим доступа. - http://base .consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW ;n=182703
7. Приказ МВД России от 14.07.2010 № 523 «Об утверждении Инструкции о порядке проведения военно-врачебной экспертизы и медицинского освидетельствования в органах внутренних дел Российской Федерации и внутренних войсках Министерства внутренних дел Российской Федерации» [электронный ресурс] - Режим доступа.http:/ /base. consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW; n=154709
PECULIARITIES OF JUVENILES’ RELEASE FROM CRIMINAL RESPONSIBILITY
Orsaeva Raisa
kand.yur. Sciences, Associate Professor of East Kazakhstan State University. S.Amanzholov, Ust-Kamenogorsk ABSTRACT
The article discusses the features of the release of minors from criminal liability and punishment.
Keywords: juvenile, criminal responsibility, punishment.
One of the essential issues of contemporary legal literature is a problem of juveniles’ release from criminal responsibility and punishment for a committed crime.
There are plenty of factors affecting establishment of responsibility under criminal law. However, the most important among them are age specific and psychological traits of juvenile, thus, it is rightful that criminal legislation determined a special (VI) Section of criminal juveniles’ responsibility.
In the first instance, Criminal Code of the Republic of Kazakhstan defined age for criminal responsibility. Juveniles covered by the Articles of the said Section are those who at the time of commission of the criminal offence has attained fourteen years of age and has not attained eighteen years of age (Article 80, part 1). A person is considered to attain definite age in the day following his/her birthday rather than in his/her birthday.
In considering problems of subject of crime it is specified that in general, age for criminal responsibility is sixteen as defined by the law. Nevertheless, in some cases involving a serious crime, criminal responsibility is imposed to persons of fourteen and elder.
Along with that, part 3 of Article 15 of Criminal Code of the Republic of Kazakhstan alerts that if a juvenile attained the age of criminal discretion but due to disadvantage of mental development not related to psychic disorder at the moment of minor crime commission could not fully realize
nature and social danger of his/her actions (omissions) or control them, he/she is not subject to criminal responsibility [1,233].
Criminal Code of the Republic of Kazakhstan in terms of sanctions emphasizes two peculiarities with regards to juveniles. The first is not all sanctions are imposed to juvenile offenders. Thus, Article 81 of Criminal Code of the Republic of Kazakhstan states punishments that can be imposed to juvenile offenders are a fine, deprivation of right to conduct definite activities, community service, correctional labor, restriction and deprivation of liberty. The second feature of juvenile criminal sanctions consists in the fact that abovementioned punishments by themselves with regards to juvenile offenders are limited.
As a general rule, criminal responsibility is implemented as a sanction the court imposes to persons found guilty in a crime. However, in a number of cases the purpose of crime control can be achieved without criminal prosecution of persons found guilty in a crime or without actual service of sentence in case of their conviction, or with early relief from punishment or substitution of unserved term to a different, milder sentence.
The criminal sentences are not aimed at requital (talion) towards a criminal. Its main mission is to correct, reform a lawbreaker, prevent him/her from committing new crimes. If this humane purpose requires no administration of rigid legal measures, the law stipulates possibility of a convict’s sentence
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mitigation down to absolute relief from punishment. The relief from punishment refers to state waiver to administer sanctions stipulated by criminal law to a convict.
Reasons for such relief may be different. Particularly, it is allowed if the convict was reeducated and reformed, and due to this, punishment purposes can be achieved without its actual execution; or if there are other facts bearing evidence that sentence administration is inappropriate (e.g., a devastating disease).
Convict’s relief of serving punishment as well as its mitigation by means of oblivion or free pardon may be administered by court only in those cases and under those procedures that are stipulated by the law.
Legal nature of release from criminal responsibility is closely related to criminal responsibility itself.
Thus, on the one hand, theoretical solution of the issue on concept, essence and content of criminal responsibility serves as a basis for solution of its release nature issue. On the other hand, it is legislative solution of issues on release from criminal responsibility that material based on which we can learn the law-maker’s opinion on content of criminal responsibility and stages of its implementation.
Absence of shared vision of criminal responsibility and of its essence is the bottleneck in the process of learning legal nature of release from criminal responsibility.
There are two main tendencies in this problem solution. The advocates of the first point of view solve this problem by means of identification of criminal responsibility and punishment and, correspondingly, identification of release from criminal responsibility and relief from punishment. The second point of view is based on the concepts of both criminal responsibility and other unfavorable consequences stipulated by the law for a person who committed a crime. So, release from criminal responsibility is not limited to relief from punishment but involves relief from other unfavorable consequences such as disapproval [2,42].
There exist many advocates of both points of view. Such scholars as Y. Kairzhanov, U. Dzhekebayev believe ‘criminal responsibility is an obligation of a person found guilty to undergo all unfavorable consequences of the committed crime as stipulated by the law’ [5,6], whereas others (V. Kudryavtsev, I. Galperin) adhere to a different statement - criminal responsibility is suffering of punishment.
We hold to the first vision, i.e. we believe criminal responsibility is not limited to sole suffering of punishment.
Firstly, if we accept other point of view then we will have to acknowledge criminal law distinguishes concepts of release from criminal responsibility and relief from punishment but this distinction is groundless.
Secondly, then we will have to acknowledge that the stage where release from criminal responsibility takes place is of no importance. Nevertheless, according to criminal and criminal procedural laws there are grounds to claim that legal effect and legal consequence are by no means equal in release from criminal responsibility prior to naming a person as convict, after naming him/her as convict, prior to trial or during trial but prior to rendering judgment of conviction, during relief from sentence serving in case of conviction and during relief from further sentence serving. Volume of enforcement measures administered to a person is different in different cases.
Thirdly, relief from suffering punishment is possible exclusively in the case when a person has already been suffering it, punishment has been imposed and is under execution. Here we should speak about cases where a person convicted to imprisonment has already been imprisoned.
Therefore, we are of the opinion that release from criminal responsibility is relief from obligation to suffer a punishment rather than relief from a punishment suffering itself.
One can object saying that a person found guilty but not brought to criminal responsibility bears no unfavorable consequences except for fear of possible requital and that such state of things undermines the significance of obligation to answer for a crime.
However, we believe that this obligation should not be considered only in an abnormal variant when a person found guilty flows from prosecution. Basically, this obligation in regular case becomes a punishment suffering. And this process is nothing but development and satisfaction of an obligation to suffer punishment.
Therefore, obligation to answer for one’s actions committed should be satisfied and the court is designated for this; the situations when the court fails to bring a criminal to responsibility undermine its authority but not authority of the criminal law.
What does ‘relief from responsibility’ mean? The word ‘relief’ implies some kind of existing abridgements. Release from criminal responsibility is applicable solely to a person who committed a crime and responsible to answer for it. Then relief from obligations means that the person is discharged from the obligations imposed earlier. Responsibility means an obligation, liability to answer for something.
If a person is not responsible to answer then he/she needs no relief from responsibility. If a person committed no criminal acts, there is no need to discharge him/her from criminal responsibility. If this is the case, it is better to say ‘a person is not subject to criminal responsibility". Consequently, the person who committed a crime is subject to criminal responsibility, and the one who did not commit a crime is not subject to it.
Some scholars (V.Filimonov, S.Kelina) emphasize that in order to discharge a person from criminal responsibility it is necessary to prove nature of crimes. According to V.Filimonov, ‘existence of various types of release from criminal responsibility in our legislation does not mean at all that in case of implementation of at least some of them there are no grounds for criminal responsibility. On the contrary, their existence is an evidence of the fact that there were grounds for this. Should there were no grounds to bring a person to criminal responsibility, the issue of relief from such responsibility by itself would be inappropriate, since we raise no question of release from criminal responsibility in case of justifiable defense or extreme necessity. We do not raise it due to the fact that in such cases there are no grounds for criminal responsibility or in other words there are no elements of a crime’[7, 69].
A juvenile who committed a crime of minor or average gravity for the first time can be discharged from criminal responsibility, if it is acknowledged that his/her correction can be achieved by means of educational enforcement.
Criminal Code of the Republic of Kazakhstan stipulated the types of educational enforcement as follows:
a) warning;
b) placing under increased supervision of parents or persons replacing them or an authorized state body;
c) imposing obligation to compensate for the damage caused;
d) abridging leisure time and imposing special requirements to the behavior of the juvenile.
e) placing the person in specially designated institution or educational clinic for juveniles.
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Placing under increased supervision consists in imposing on parents or persons replacing them or authorized state body an obligation of educational impact on a juvenile and increased supervision of his behavior. While implementing this enforcement, parents have abridgement in the ways to execute this obligation; a parent’s obligation is specified and he/she instructed to, for example, control leisure time of the child, not to permit him/her to leave house after definite hour, etc. This measure serves as a definite caution for parents and other persons on possible bringing of their child (person under care) to responsibility in order to impel them to more active educational activity [4,149]. When parents and other persons do not agree to assume this obligation of increased supervision or are not capable to perform this obligation properly, a authorized state body is preferable.
Obligation to compensate for the damage caused is imposed with due consideration of property status and labor skills of the juvenile. Civil legislation stipulates property compensation of moral harm, however in some cases when an injured person agrees, moral damage may be compensated by violator’s apologies.
Abridgement of leisure time and special requirements to a juvenile’s behavior may involve prohibition to visit definite places, enjoy some types of leisure activities, including those connected to driving motor vehicles, spend limited time outside the house after definite hours, visit some distant locations without permission issued by an authorized state body. A juvenile may be required to return to a general education institution or obtain employment from an authorized state body. Some other requirements necessary for correction of the juvenile may be imposed to him/her. These requirements should be expedient, not cruel, should not hurt the juvenile and should not be aimed at abasement of the juvenile’s dignity.
Since educational enforcements are not divided into principal and supplementary, several educational measures may be imposed contemporaneously.
System of educational enforcements stipulated by law provides the basis for release of juveniles from criminal responsibility and punishment and their substitution by educational enforcement. Educational enforcement actions may be based on the juvenile’s commission of crime of minor and average gravity for the first time, possibility to achieve correction aims by means of an educational enforcement.
As a general rule, a crime committed by a person can be established only by a court verdict that took legal effect. Since in this case exception from general principle is allowed, a particular emphasis is given to establishment of a crime. Such measure is inappropriate for a person who did not admit his/her guilt in the committed crime, though it should be taken into account that admission of offence as any other evidence should be reviewed with due attention. A juvenile may have grounded reasons for self-inculpation (for instance, fear of criminal sanction or of a real criminal).
Possibility of a juvenile’s correction can be established on the basis of nature and danger level of the definite crime, personality of a person found guilty, conditions of his/her life and upbringing and other facts of the case.
Criminal Code of the Republic of Kazakhstan stipulates regulation on a juvenile’s relief from punishment with their substitution by educational enforcement.
Also Criminal Code of the Republic of Kazakhstan stipulates possibility of placing the juvenile in specially designated institution or educational clinic for juveniles. This measure is also an educational enforcement. Criminal law in Article 83 stipulates special procedure and grounds for administration of this measure.
Lodgment in specially designated institutions and educational clinics may be terminated before the end of the term (maximum punishment term), when the person reaches majority provided that according to the statement of an authorized state body enforcing correction, the juvenile does not need more corrective measures for his/her correction. Prolongation of the term of the juvenile’s lodgment in specially designated institution or clinic is allowed exceptionally when there is need to finish educational or professional training [5,35].
If a person committed a crime and was discharged from punishment under Criminal Code of the Republic of Kazakhstan, this does not involve criminal record and it can be unconsidered in awarding a punishment and case classification in the event of a new crime, but under the Criminal Code the fact of a crime commission after relief from punishment is a circumstance that characterizes personality of the criminal which is considered in both awarding punishment and deciding of possibility and type of the person’s release from criminal responsibility or punishment.
Both juvenile-specialized types of release from criminal responsibility and punishment and general ones are applicable to juvenile offenders.
A juvenile may be discharged from criminal responsibility under general regulations due to active repentance, reconciliation with an injured person (due to change of circumstance, expiry of limitation periods).
A juvenile may be discharged from punishment under general regulations on conditional sentences and relief from punishment due to disease.
It is reasonable to award conditional sentences to persons of majority age or those close to them in age who committed a crime prior to reaching majority provided that the court will decide that convict’s correction can be realized without service of sentence and will administer punishment in the form of imprisonment or correctional labor.
Criminal Code of the Republic of Kazakhstan states shortened terms after serving which a juvenile may be convicted on parole from serving a sentence. Parole from serving a sentence may be administered to juveniles sentenced to correctional labor or imprisonment after actual service of:
a) minimum one third of the term of the sentence administered by the court for a crime of minor or average gravity;
b) minimum half of the term of the sentence administered by the court for a serious crime;
c) minimum two thirds the term of the sentence administered by the court for a high crime.
Juveniles are subject to general regulations on grounds
for parole stipulated by Criminal Code of the Republic of Kazakhstan (Criminal Code of the Republic of Kazakhstan goes as follows: ‘A person serving correctional labor, limitation in military service, restriction of liberty, lodgment in a disciplinary military unit or imprisonment can be discharged on a parole provided that the court acknowledges that for his/her correction he/she does not need to serve full term of the punishment administered by the court. [4,149] If this is the case, a person can be fully or partialy discharged from serving additional punishment type. ’), to placing definite duties on a convict on parole, to obligatory minimal service term and to parole for the persons who were on parole earlier (Paragraph b of Part 3), to behavior control of a convict on parole, cancellation of parole and administration of a sentence in the event of a new crime commission by a convict on parole during an unserved part of punishment.
According to Criminal Code of the Republic of Kazakhstan, limitation period in case of a juvenile’s release
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from criminal responsibility or relief from punishment is reduced by half. Since no sentences in the form of death penalty and life imprisonment are administered to juveniles, maximum limitation term of a juvenile’s criminal responsibility is 7.5 years. Expiry of limitation terms stipulated in the abovementioned article with regards to a juvenile make no hinders to initiation of a criminal case due to crime commission and performance of actions necessary for establishing the truth, particularly, possible participation of mature persons in the crime.
Shortened limitation periods stipulated by Criminal Code of the Republic of Kazakhstan may be applied when there are grounds provided for persons of 18 to 20 years of age. If this is the case, the court should take under deliberation the fact that the crime is committed by a person who is mentally and socially immature due to his/her age.
While awarding punishment to a juvenile, in addition to universal circumstances mitigating criminal responsibility, conditions of life and upbringing, mental development level, other personal traits as well as influence of other older persons are considered.
Juvenility as a mitigating circumstance is considered together with other mitigating and aggravating circumstances.
Moreover, juvenile convicted for the crime of minor or average gravity for the first time may be discharged from punishment by court provided that it is established that his/her correction is achevable by means of educational enforcement.
References
1. Кайржанов Е.И. Уголовное право Республики Казахстан ( общ.ч.).-Алматы,2007- с. 233 / Y.
Kairzhanov. Criminal Law of the Republic of
Kazakhstan (general part). - Almaty, 2007 - p.233 (in Russian)
2. Гальперин И.М. Наказание: социальные функции, практика применения: - М., 1986. -с.42 / I. Galperin. Punishment: Social Functions, Practice of Application: - Moscow, 1986. - p.42 (in Russian)
3. Кудрявцев В.Н. Генезис преступления. Опыт криминологического моделирования. -М., 1998. - с.21 / V. Kudryavtsev. Genesis of Crime. Experience of Criminological Modeling. - Moscow, 1998. - p.21 (in Russian)
4. Келина С.Г. Проблемы совершенствования уголовного закона -М., 1984. -с.149 / S. Kelina. Problems of Criminal Law Improvement - Moscow, 1984. -
р. 149 (in Russian)
5. Джекебаев У.С. Основные принципы уголовного права Республики Казахстан: (сравнит. комммент. к книге Дж.Флетчера и А.В.Наумова «Основные концепции современного уголовного права») - Алматы, 2001. -с.35 / U.Dzhekebayev. Main Principles of Criminal Law of the Republic of Kazakhstan: (comparative commentary to the book of J.Fletcher and A.Naumov. Basic Conceptions of Contemporary Penal Law) - Almaty, 2001. - p.35 (in Russian)
6. Кайржанов Е.И. Некоторые вопросы уголовной политики и наказания по законодательству РК. - Ал-маты,2005.- с.52 / E. Kairzhanov. Some Issues of Criminal Policy and Punishment under Legislation of the Republic of Kazakhstan. - Almaty, 2005. - p.52 (in Russian)
7. Филимонов В.Д. Личность преступника.-М.,1986. -
с. 69 / V. Filimonov. Personality of a Criminal. -Moscow, 1986. - p.69 (in Russian)
ТОЛКОВАНИЕ ПРАВОВОГО ПОЛОЖЕНИЯ ЧЕЛОВЕЧЕСКОГО ЭМБРИОНА В СВЕТЕ ПОСЛЕДНЕЙ СУДЕБНОЙ ПРАКТИКИ ЕВРОПЕЙСКОГО СОЮЗА
Пестрикова Анастасия Александровна
К.ю.н., доцент кафедры гражданского права и процесса, г. Самара
АННОТАЦИЯ
статья рассматривает последние судебные разбирательства, затрагивающие вопросы патентования в сфере биотехнологий в рамках Европейского союза. Ставится вопрос о необходимости четкого определения правового положения человеческого эмбриона. Предлагается узкий и широкий подход к определению понятия «человеческий эмбрион», что имеет большое значение для дальнейшего правового регулирования отношений по поводу человеческих эмбрионов или с их участием.
ABSTRACT
the article examines recent court cases involving issues of patenting in biotechnology in the European Union. The main question is about the need for a clear definition of the legal status of the human embryo. It is proposed to narrow and broad approach to the definition of human embryo what is paramount important for the further legal regulation of relations arising on the human embryo or with his participation
Ключевые слова: человеческий эмбрион, партенот, патентование в сфере биотехнологий, стволовые клетки, биологический материал человека.
Keywords: human embryo, patenting in biotechnology, stem cells, human biological material.
18 декабря 2014 года Европейский суд (Court of Justice of the European Union) вынес столь ожидаемое решение по делу C-364/13 Международная Корпорация стволовых клеток против Контролера Общих патентов (International Stem Cell Corporation v Comptroller General of Patents) [1].
Решение было вынесено с учетом уже имеющегося прецедента по другому делу Brustle v. Greenpeace 2011 года (Brustle) [2], которое касалось отношений, связанных,
с патентованием способа получения стволовых клеток человека.
Гражданин Германии Oliver Brustle являлся обладателем патента, выданного в декабре 1997 года, который касался способа выделения нейронных клеток из эмбриональных стволовых клеток, необходимых для лечения заболеваний нервной системы. Как было указано в патенте, данный способ является перспективным способом лече-
