The USA Journals Volume 03 Issue 04-2021
88
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
88-93
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-14
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
The comprehensiveness of the penitentiary system is central to achieving the goal of criminal
punishment. In other words, no matter how perfect the type and system of punishment, if the
mechanism of its application and execution is not implemented wisely, unfortunately, this punishment
will remain ineffective. Deprivation of a certain right has a preventive character, which is clearly
expressed as a punitive measure. The imposition of this penalty is mainly due to the need to prevent
the recurrence of these crimes by persons who commit crimes related to the abuse of available
opportunities in connection with their position or activities. It substantiates the relevance of the
analysis of punishment in the form of deprivation of a particular right from the point of view of criminal
law and criminal-executive law and the need to study it. This article reflects the specifics of punishment
in the form of deprivation of certain rights in the criminal law of some foreign countries.
KEYWORDS
Punishment, criminal law, rights, code, responsibility, ban, article, deprivation.
INTRODUCTION
The issues of the application of punishments
and other measures not related to deprivation
of liberty are acquiring more and more
pronounced international legal significance
Deprivation Of The Right To Hold Certain Positions And
Engage In Certain Activities In Foreign Legislation
Farkhod Sayfullaevich Alikulov
Tashkent State University Of Law, Theory And Practice Of The Application Of Criminal Law
Specialty Student, Uzbekistan
Journal
Website:
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om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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Pages:
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Doi:
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due to the fact that in many countries the
urgency of the problems associated with
overcrowding in penitentiary institutions is
increasing. The VIII UN Congress on Crime
Prevention (Havana, 1990) paid special
attention to finding alternatives to isolating
prisoners from society. It has adopted the UN
Standard Minimum Rules for Non-custodial
Measures, the so-called Tokyo Rules, which
contain a set of basic principles to promote the
use of non-custodial measures, as well as
minimum guarantees for those to whom they
apply [1, p. 48].
A similar regional document is the European
Rules for the Application of Public (Alternative)
Sanctions and Measures, adopted in 1992 by
the Committee of Ministers of the Council of
Europe, and other specialized international
standards of this kind [2].
THE MAIN RESULTS AND FINDINGS
The United Nations Convention against
Corruption provides for the establishment of
procedures by which a public official charged
with an offense established in accordance with
this Convention may be duly removed,
suspended from office or transferred to
another position by an appropriate authority
with taking into account the need to respect
the principle of the presumption of innocence
[3].
The Convention on Combating Bribery of
Foreign Officials in International Business
Transactions refers to civil or administrative
sanctions applied to legal entities for the act of
bribery of a foreign official. These may include
temporary or permanent exclusion from the
number of participants in public procurement
or prohibition to engage in other commercial
activities.
The International Covenant on Civil and
Political Rights of the UN General Assembly in
1966 [4], along with the guarantee of the equal
right of citizens and the possibility of equal
access to public service, also provides for the
right of the state to impose special duties and
responsibilities. This right may be subject to
certain restrictions, which, however, must be
established by law and are necessary.
As we can see, the trend in the world criminal
policy of recent decades is the expansion of the
use of punishments that are not related to the
isolation of the convicted person from society.
This affected not only the sphere of public
relations, but also the sports industry. Thus,
Article 10 of the International Anti-Doping Code
"Sanctions against Individuals" contains the
following provisions - the types of penalties are
cancellation of the results of a sporting event
(Article 10.1) and disqualification (Article 10.2).
It should be noted that there is an obvious
analogy between the sanctions applied by the
World Anti-Doping Agency (WADA) to anti-
doping rule violators with criminal penalties. At
the same time, these measures represent an
extrajudicial type of repression, are appointed
without the consent and without the
participation of the person brought to justice
[5, p.p. 57-60].
In addition, deprivation of the right to hold
certain positions and engage in certain
activities is widely used abroad as measures of
state coercion - additional punishment or
additional legal consequences of committing a
crime and is rightfully recognized as one of the
most effective.
The criminal codes of European countries
contain such types of prohibitions as, for
example:
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
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April 30, 2021 |
Pages:
88-93
Doi:
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a ban on driving a vehicle, deprivation of a
permit to drive a vehicle (Criminal Code of the
Federal Republic of Germany);
Deprivation of the right to hold office, the right
to be elected and the right to vote (Criminal
Code of the Federal Republic of Germany);
Ban on profession (Criminal Code of the
Federal Republic of Germany);
Removal from office (Austrian Penal Code);
Deprivation of civil rights, which consists in the
deprivation of the right to serve in the army of
the Kingdom (the right to military service)
forever or for a certain time (Austrian Penal
Code) [6];
Deprivation of civil rights, deprivation of the
right to vote on public issues (Norwegian Penal
Code) [7];
Deprivation of academic degrees, titles, state
powers, deprivation of the right to perform
state functions, hold public positions or carry
out public duties, deprivation of the right to be
elected; to act as a jury, attested, etc .; carrying
weapons, participating in the Civil Guard and
serving in the army (Criminal Code of Belgium)
[8].
Under US federal law, individuals convicted of
corruption offenses such as bribery are
deprived of the right to permanently hold
certain positions or work for a specified period
in certain industries [9, p. 45].
The model criminal code for the member states
of the Union of Independent States under the
deprivation of the right to hold certain
positions or engage in certain activities means
“the prohibition to hold positions in the civil
service, in local government bodies, at
enterprises of any form of ownership or in
public associations, or to engage in certain
activities” [10].
The question of the responsibility of convicts
for evading punishment in foreign countries is
resolved in different ways: 1) directly in the
verdict, the court determines the type and
amount of punishment to which the initial
punishment will be replaced in case of evasion
of the convict from serving it; 2) replacement
of punishment for a more severe one; 3) mixed
version; 4) the establishment of an
independent
composition
of
evasion
(malicious evasion) from serving sentences.
Thus, liability for non-compliance with a court-
ordered ban is provided for in the General Part
of the Criminal Code of the Republic of Poland
as an independent crime (Article 244),
followed by a fine, restriction of liberty or
imprisonment for up to one year.
The Swiss Criminal Code establishes criminal
liability under article 294 for violation of the
ban on the profession (and Swiss criminal law
provides for this type of ban as an additional
penalty), with the sanction of arrest or a fine.
The criminal legislation of the Republic of
Lithuania for evasion from serving sentences
or punitive measures not related to
imprisonment
(with
the
exception
of
confiscation of property) establishes liability in
the form of a fine or arrest (Article 243 of the
Criminal Code of the Republic of Lithuania).
The French Criminal Code in Articles 434-40 and
434-41 provides for liability for evading
punishment in the form of prohibition of
professional or social activities, deprivation of
a driver's license, prohibition on the possession
or carrying of weapons. The sanctions for such
an act are imprisonment for up to two years
and a fine.
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2693-0803)
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April 30, 2021 |
Pages:
88-93
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-14
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According to § 145c of the German Criminal
Code, in case of violation of the prohibition on
the profession, such a person can be
prosecuted and sentenced to imprisonment
for up to one year or a fine.
Article 145 of the Dutch Penal Code establishes
that a person who exercises a right, knowing
that he is deprived of this right by a court
decision, is punishable by imprisonment for up
to six months or a third category fine.
In accordance with Article 306 of the Criminal
Code of the Republic of Azerbaijan: malicious
failure to execute a decision, sentence, ruling
and court order that has entered into legal
force is punishable by a fine of one thousand
conventional financial units, or community
service from 160 to 200 hours, or correctional
labor for up to two years, or restriction of
liberty, or imprisonment for the same period.
CONCLUSION
In cases where threat is manifested as an
element of the objective aspect of another
crime, it serves as a way and means to break
the victim's resistance, to influence his psyche
in order to intimidate him with this or that kind
of injury if he does not comply with the guilt
[11].
The study of the issue of deprivation of the
right to hold certain positions and engage in
certain activities in foreign legislation allows us
to formulate the following conclusions:
1.
In contrast to the Uzbek legislation, which
provides for only one type - the deprivation
of the right to hold certain positions or
engage in certain activities, the codes of
foreign states provide for an extensive list
of criminal legal measures (basic or
additional
types
of
punishments,
corrective
and
security
measures,
measures of a criminal legal nature, etc.)
related to the deprivation of the right to
hold certain positions, engage in a certain
activity or profession, the right to vote and
be elected, etc.
2.
From the point of view of the sanctions
applied by WADA to anti-doping rule
violators, an obvious analogy should be
noted with administrative and criminal
punishment (disqualification, deprivation
of the right to engage in certain activities).
At the same time, these measures are an
extrajudicial type of repression, they are
appointed without the consent and
without the participation of the person
brought to justice.
3.
A distinctive feature of these measures
under foreign legislation is the long,
compared to Russian, terms of deprivation
or restrictions - the maximum period for
most types of deprivation of certain rights
is ten years, and in some cases for life.
4.
Deprivation of the right to drive vehicles as
a type of prohibition is enshrined in most of
the criminal codes of European countries:
in Germany as an additional punishment
and a measure of correction and safety; in
Italy - additional punishment; in England - a
measure of a criminal law nature; in Spain -
a special security measure, etc.
5.
In the UK Criminal Code, deprivation of the
right to engage in certain activities can be
used as an alternative to imprisonment,
even when it is not provided for by the
sanction of criminal law.
6.
In most of the criminal codes of foreign
countries, the legislator distinguishes
between a prohibition on a profession and
a prohibition on engaging in certain types
of activities that are not related to the
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(ISSN
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April 30, 2021 |
Pages:
88-93
Doi:
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profession, giving them the status of
independent punishments, with their
purpose in different spheres of diminishing
the rights of the guilty.
7.
The issue of the state's response to the
facts of evasion of the convicted person
from serving the assigned punishment has
been resolved in different ways: the
presence of an independent corpus delicti;
replacement by a more severe type of
punishment when evading serving it;
directly in the verdict, the court determines
the type and amount of punishment to
which the initial punishment will be
replaced in the event the convicted person
avoids serving it.
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The USA Journals Volume 03 Issue 04-2021
93
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
88-93
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-14
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Алланова А. А. ЕВРОПА ДАВЛАТЛАРИ
ВА АМЕРИКА
Қ
ЎШМА ШТАТЛАРИДА
Қ
ОНУНГА ХИЛОФ РАВИШДА ДАВЛАТ
ЧЕГАРАСИДАН ЎТИШ БИЛАН БО
Ғ
ЛИ
Қ
ЖИНОЯТЛАР УЧУН ЖАВОБГАРЛИК
МАСАЛАЛАРИ
//«
Ҳ
у
қ
у
қ
ий
тад
қ
и
қ
отлар» электрон журнали. –
2020. – Т. 8. – №. 5.
