On construction of sanctions and formalization of purpose of punishment in Criminal law of the Republic of Azerbaijan

Keywords: criminal law, criminal punishment, formalization of sentencing, sanction, construction of sanctions, alternative sanction, cumulative sanction, single sanction, relatively specific sanction

Abstract

According to the author, the construction of most of the sanctions Special Part of the Criminal Code Republic of Azerbaijan should be changed in order to strengthen the formalization of sentencing. However, this issue requires a systematic solution and for the successful solution of this task, the criminal law should be substantially reformed. The current Criminal Code of the Republic of Azerbaijan, adopted on December 30, 1999, contains many fundamentally new positions and norms, some of which, unfortunately, are not without drawbacks. In addition, during the period of the Criminal Code, many changes and additions were made to it (more than one third of all the norms of the Special Part), which were not always agreed upon with other norms and institutions. In the current edition of the Criminal Code, the differentiation of criminal responsibility is inconsistent in both the General and Special Parts, which is mainly due to the imperfection of the main criterion for differentiation of criminal liability - the institution of classification of crimes. The imperfection of the institution of classification of crimes and the inconsistency in the differentiation of criminal liability could not but affect the very principle of constructing criminal sanctions in the Special Part, which play a decisive role in determining the categories of specific crimes. The main drawback of the sanctions system of the Special Part is their inconsistency, both among themselves and with typical sanctions of crime categories. The sanctions of the main, qualified and highly qualified convictions in the vast majority of cases coincide, which in practice leads to the imposition of punishments that do not correspond to the committed categories of crimes. The types of sanctions (single, alternative, cumulative) for various categories of crime are not always optimally determined. Relatively defined sanctions in the Criminal Code often have too wide limits between the minimum and maximum sentences (especially in alternative designs), which leads to wide judicial discretion. In addition, the wide limits between the minimum and maximum sentences in most cases cover the boundaries of typical sanctions of two or more categories of crimes, which lead to an imbalance between the specific punishment imposed by the court and the consequences of the crime. All this substantially violates the principles of the equality of all before the law and the court (Article 6 of the Criminal Code) and the justice of criminal law and criminal liability (Article 8 of the Criminal Code). At the same time, improving the institution of classification of crimes is a rather complicated and intractable process both theoretically and in practice, as their resolution is actually aimed at a complete reform of the sanctions of the Special Part, as well as a rethinking of a number of conceptual provisions of the General Part of the criminal law. Coordination of the sanctions system of the Special Part of the Criminal Code is possible subject to the principles of building sanctions in accordance with the Constitution of the Republic of Azerbaijan and the basic principles and norms of international law, as well as general legal principles of the criminal law. Given the systemic nature of the criminal law, when making additions and changes to the General Part, as well as to the Special Part of the Criminal Code, the new rules should be agreed overall with the sanctions system of the Special Part of the Criminal Code. When constructing sanctions in the Special Part of the Criminal Code, the prevalence of the principle of individualization of punishment and, consequently, the expansion of judicial discretion over the legislatively defined differentiation of criminal liability violates not only the principle of justice of the criminal law, but also the constitutional provision on the equality of citizens before the law and the court. Appealing to the principle of humanity in the provision of broad powers to the court to individualize punishment is considered unreasonable, because the specific nature of the tasks of criminal law still determines, in our opinion, the supremacy of the principle of justice. Moreover, the principle of humanity has been sufficiently taken into account when regulating many provisions and norms of the General Part of the Criminal Code of the Azerbaijan Republic (Articles 62, 70 and others).

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How to Cite
Samadova, S. (1). On construction of sanctions and formalization of purpose of punishment in Criminal law of the Republic of Azerbaijan. Law Review of Kyiv University of Law, (3), 276-282. https://doi.org/10.36695/2219-5521.3.2019.47