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Magyar Tudomanyos Journal # 41, 2020
PRINCIPLES OF CRIMINAL LEGISLATION IN THE REPUBLIC OF TAJIKISTAN
Seleznev A.
senior lecturer of the Department of criminal law and procedure, The Russian State University for the Humanities, Moscow
Krapchatova I.
Candidate of Law, Associate Professor, the Head of the Department of Criminal Law and Procedure,
The Russian State University for the Humanities, Moscow
Abstract:
The article discusses the principles of the criminal legislation of the Republic of Tajikistan, enshrined in the current Criminal Code and gives a brief description of them.
Keywords: principles of criminal law; legality; the equality of all before the law; the principle of personal responsibility and guilt; justice; humanism; presumption of guilt; objective imputation; democracy.
The adoption on November 6, 1994, by a popular referendum of the new Constitution of the Republic of Tajikistan [1] and the fundamental changes that occurred in the social life of society and the country determined the development and adoption of a new criminal law, which should be based on the principles of legality, justice, humanity and democratic principles the rule of law.
The new Constitution of Tajikistan enshrined a number of general principles and guidelines, primarily related to the rights and freedoms of man and citizen, which were most directly related to criminal law. For example, constitutional norms on the inadmissibility of discrimination against a person on the basis of sex, education, nationality, social status, on the equality of all before the law, on the equal protection of all forms of property, on the prohibition of liability for the same crime or offence twice.
The then existing Criminal Code in the country was adopted by the Supreme Council of the Tajik SSR on August 17, 1961 (replaced the first criminal code of the Tajik SSR of May 9, 1935) [2, p. 20] and despite the fact that this criminal law was repeatedly amended and supplemented during its operation, according to some estimates, from 1961 until the abolition of this criminal law in 1998, more than 600 changes, additions, exceptions and various adjustments were made to it, approximately two-thirds of the articles underwent significant reconstruction, but in terms of content, this criminal law is outdated and could not fully meet the legal realities of that time [3, p. 107].
In this regard, in accordance with the decree of the President of the Republic of Tajikistan in June 1995, a working group was created to develop a new Criminal Code, which included scientists and specialists from the Supreme Court, the General Prosecutor's Office, the Ministry of Justice, the Executive Office of the President of the Republic of Tajikistan, and the Ministry of Internal Affairs, Ministry of Security, etc.
In May 1997, the working group completed work on the draft of Criminal Code, the draft was submitted to give an opinion and adoption to the Supreme Assembly of the Republic of Tajikistan. The new Criminal Code was adopted on May 21, 1998, at the ninth session of the Supreme Assembly of the Republic of Tajikistan and entered into force on September 1 of the same year.
For the first time in the history of the criminal legislation of Tajikistan, the principles of criminal law were included in its system:
principle of legality (art. 4);
principle of equality before the law (art. 5); principle of the inevitability of liability (art. 6); principle of personal responsibility and guilt (art.
7);
principle of justice (art. 8); principle of humanism (art. 9); principle of democracy (art. 10). The significance of normative consolidation of fundamental principles in criminal law consists of their real impact on practice, in the most complete compliance of law enforcement with the guiding ideas and principles that embody these principles.
It should be noted that the absence of the principles of criminal law in the previous codes of the country is due to the fact that they were not enshrined in either the Fundamentals of Criminal Law of the USSR, 1958, or in the Basic Principles of the Criminal Law of the USSR and the Union Republics of 1924 that were in force, and for the first time, this institution of criminal law appeared in article 3 of the draft Fundamentals of the Criminal Law of the USSR and Union Republics of 1988 as the principles of criminal law [4, p. 39]. As normative provisions, the principles of criminal law were reflected only in Article 2 of the Fundamentals of the Criminal Law of the USSR and the Union Republics of 1991. Article 2 of the Principles of the Criminal Law was entitled "Principles of Criminal Law" and contained only a list of principles on which criminal law should be based. These were the following principles: legality, equality of citizens before the law, the inevitability of responsibility, personal and guilty responsibility, justice, democracy and humanism [5].
Therefore, in the Soviet Criminal Law, the principles stood out only in theory, some scholars, for example, P.A. Fefelov singled out up to 15 different principles of the Criminal Law [6, p. 39].
The Tajik Criminal Law has also largely adopted the principles of the criminal code and criminal liability enshrined in the Model Criminal Code for the member states of the Commonwealth of Independent States (Art. 4 - 10) [7].
Article 3 of the Criminal Code of the Republic of Tajikistan states: The Criminal Law is based on the principles of legality, equality before the law, the inevitability of responsibility, personal responsibility, guilt, justice, humanism, democracy.
The principle of legality (Art. 4) is that the criminality of an act, its punishment, as well as other criminal legal consequences, are determined only by the
Magyar Tudomanyos Journal # 41, 2020 Criminal Code in force at the time the crime was committed. No one may be adjudged guilty of a crime and given a criminal penalty otherwise than by a legal court sentence. And also that the content of the Criminal Code should be understood in strict accordance with its text, such a provision is absent in a number of criminal laws of the CIS countries. Criminal legislation may not be applied by analogy.
The principle of equality before the law, enshrined in Article 5 of the Criminal Code of the RT, is that persons who have committed crimes are equal before the law and are subject to criminal liability regardless of gender, race, nationality, citizenship, language, religion, political opinion, education, social, official and property status, membership of political parties in public associations, place of residence and other circumstances.
The principle of inevitability of responsibility indicates that any person who commits a crime is liable to punishment or other criminal law measures provided for in the Criminal Code.
Article 7 sets forth the principle of personal responsibility and guilt, which consists in the fact that no one can be held criminally liable except for his own acts (actions or inaction) and that a person is liable only for those socially dangerous acts and socially dangerous consequences that have occurred, in respect of which his fault is established. This principle also provides for a ban on criminal prosecution for innocent harm, that is, for objective imputation.
Specified in Art. 8 of the Criminal Code of the Republic of Tajikistan, the principle of justice establishes the provision according to which the punishment and other measures of a criminal law nature to be applied to the person who committed the crime must be fair:
correspond to the nature and degree of public danger of the crime;
circumstances of the crime; the identity of the perpetrator. The same article also provides for a principle known since the Roman law and formulated in Latin as non bis in idem, i.e. no one can be held criminally liable twice for the same crime.
Article 9 of the Criminal Code of the Republic of Tajikistan formulates the principle of humanism so that the person who committed the crime should be sentenced or a criminal measure should be applied, necessary and sufficient to correct it and prevent new crimes, while the punishment and other measures of a criminal law applied to the person who committed the crime, they cannot have as their aim the infliction of physical suffering or the humiliation of human dignity.
The principle of democracy is formulated in article 10 of the Criminal Code of the Republic of Tajikistan, it should be noted that this principle is absent in the criminal law of most CIS countries, and consists in the fact that in cases provided for by criminal law, political parties, public associations, bodies self-government of citizens or collectives at their request and with their consent.
Based on the foregoing, it can be concluded that the principles of the criminal law of the Republic of Tajikistan are a system of interconnected elements that function as a whole, which are aimed at ensuring the most effective protection of the rights and freedoms of the individual, the interests of society and the state.
Список литературы
1. Конституция Республики Таджикистан от 6 ноября 1994 года, сайт Министерства иностранных дел Республики Таджикистан URL: https://www.mfa.tj/ru/main/tadzhikistan/konstitutsiya (дата обращения 25.05.2020).
2. Азизов У.А. Развитие уголовного законодательства Республики Таджикистан (1961 - 2007 гг.). Дис. ... канд. юрид. наук / Душанбе, 2008. - 161 c.
3. Расторопов С.В., Рахимов Р.Х. Некоторые особенности уголовного законодательства Республики Таджикистан // Вестник Академии экономической безопасности МВД России, 2010, N 8, С. 107 - 111.
4. Уголовное право России. Общая часть: Учебник / Под ред. Ф.Р. Сундурова, И.А. Тарханова. - 3-е изд., перераб. и доп. - М.: Статут, 2009. - 751 с.
5. Основы уголовного законодательства Союза ССР и республик, Приняты Верховным Советом СССР 2 июля 1991 г. N 2281-1. URL: http://kremlin.ru/acts/bank/17 (дата обращения 25.05.2020).
6. Фефелов, П.А. Принципы советского уголовного права // Правоведение. 1989. - № 2. - С. 3643.
7. Модельный Уголовный кодекс для государств-участников СНГ, ПРИНЯТ Постановлением Межпарламентской Ассамблеи государств-участников Содружества Независимых Государств, Санкт-Петербург, 17 февраля 1996 года. URL: https://iacis.ru/upload/iblock/753/019.pdf (дата обращения 25.05.2020).
8. Уголовный кодекс Республики Таджикистан от 21 мая 1998 года, сайт Верховного Суда Республики Таджикистан. URL: https://sud.tj/upload/iblock/aee/aeeeb7c2a0287bfcca25 7b538651e5f3.pdf (дата обращения 25.05.2020).
