Master of law Ismagulova K.B.

A. Baitursynov Kostanay state university, Kazakhstan

Actual problems related to criminal and criminological concepts of interpretation of penitentiary relapse

The notion of relapse is known to the criminal law of many countries. Some criminal codes contain the definition of this term: in the Spanish Criminal Code in Chapter VI «Circumstances which aggravate criminal liability" and these include the relapse wich is defined as follows: «Relapse takes place when the offense was committed before the offender has been convicted of an offense of the same nature as provided in the same section of this Penal Code» (paragraph 8, Article 23). Previous conviction excludes relapse. Definitions of relapse are also in the Criminal Code of Uzbekistan, Kyrgyzstan, Belarus, etc.

Even if the term in the criminal law is not used, the relapse may be considered still when sentencing. Such is the case in the Criminal Code of Germany, Poland, France. In the federal criminal law and the Criminal Code of the United States most states provide for a strict liability for "habitual criminals", which, according to Art. 3575 of title 18, United States Code, may be recognized as a person under 21 years, twice sentenced to imprisonment for more than a year for any felony (a crime punishable by imprisonment for more than one year) and again commit any felony[1]

Relapse is usually divided into general and special. General relapse involves committing dissimilar crimes. Legal meaning of general relapse is that it is not affecting the qualification of crimes and considered in the individualization of responsibility and assignment of punishment.

Special relapse involves committing face similar or identical offenses. Legal meaning of special relapse is that it - first, in the cases provided by law is a qualifying or special qualifying circumstance. Secondly, special relapse as common, if it is not specified in the article of the Criminal Code as a qualifying feature, considered by the court as circumstance, which aggravates responsibility and punishment[2]. And finally, a special relapse has the same effects as the general, if it takes place during the convict punishment for past offense or for a first offense if the person serving a sentence of imprisonment.

According to the degree of social danger, relapse is divided into easy, dangerous and extremely dangerous.

Simple relapse is not covered under the signs of dangerous or especially dangerous relapse.

In accordance with Article 13 of the Criminal Code, relapse is considered dangerous :

а) in the commission of a deliberate crime for which he is sentenced to imprisonment, if this person previously twice been sentenced to imprisonment for an intentional crime;

b) if a person has committed a grave crime, if it was previously convicted of a grave crime.

Especially dangerous relapse in accordance with the third paragraph of Article 13 of the Criminal Code recognizes:

а) in the commission of a deliberate crime for which he is sentenced to imprisonment, if earlier this person at least three times been sentenced to imprisonment for a grave crimes or intentional crimes of medium gravity;

b) if a person has committed grave crime for which he is sentenced to imprisonment, if this person previously twice been sentenced to imprisonment for a grave crime or been convicted of a especially grave crime;

c) if a person has committed especially grave crime, if it was previously convicted of a grave or especially grave crime.

Legal value of relapse by simple division, dangerous and especially dangerous is that, in accordance with the second part of Article 59 of the Criminal Code of the term and size of punishment in the presence of one or another of its kind can not be appointed by the court below the corresponding maximum term limit and the size of the most severe punishment prescribed by law for the offense committed. [3]

Also emit the penitentiary relapse, which is a commission of a crime in prison. Criminological relapse covers all persons who have committed crimes, regardless of their exemption from criminal liability or punishment, the statute of limitations and the availability of criminal records.[1]

Penitentiary relapse covers usually acquisitive,
acquisitive and violent and violent crimes, ending or committing similar crimes or wrongful acts under Articles 358-361 of the Criminal Code of the Republic of Kazakhstan. [5]

So what is the recurrence of the penitentiary? Will every crime committed in prison, relate to prison recidivism, or necessary prerequisite in order that the crime committed by a person serving a criminal sentence in prison for previously committed, should be intentional?

And so, in accordance with Article of the Criminal Code of the Republic of Kazakhstan relapse recognized as committing an intentional crime by a person who has previous conviction for committing an intentional crime [4]

It will be wrong to characterize relapse as completion of sentence in the form of imprisonment, not less than a second time. In this case it can be assumed that: the penitentiary relapse is a committing of an intentional crime by a person who is serving a criminal sentence in prison for previously committed deliberate crime.

Therefore, we can say that the penitentiary relapse should be recognized as a premeditated crime by a person serving a sentence in prison for previously committed deliberate crime.

Analysis of recidivism that this problem requires a comprehensive study of relapse - in criminological, forced labor and criminal law aspects, while
the latter should serve as the basis for the first two.

The notion of relapse - first of all criminal law concept
because a criminal law contains rules governing liability for recidivism, sentencing rules formulated at relapse, etc.

However, the notion of relapse should be the same, no matter what aspect - criminological, forced labor or criminal law - examines various problems of relapse, recurrent criminality. Solution of this question has a great, not only theoretical but also practical importance.

With regards to the problem of relapse in theory, up to the present time there is no consensus. There were various theories of different scientists about the interpretation of relapse. Each theory in its own is relevant, but not complete.

All this necessitates further study of relapse in criminal law and
the development of proposals for the improvement of the criminal law to regulate liability recidivists. Solution to these and other issues of recidivism will help to improve and harmonize criminal law terminology, the conceptual apparatus of the institution bringing criminal law into line with the needs of the legal development of both the state and society, will differentiate decide the question of liability depending on the type of recurrence and thus, "to struggle against crime."

Question which is concerning the organization of an effective response to Prison relapse is important for the effectiveness of criminal penalties of imprisonment.

In modern conditions, according to Penal Reform International (PRI), in 2000 Kazakhstan ranked third place in the world in the number of persons detained in the penitentiary system, per 100 thousand population, giving the palm United States and Russia. During the period from 2000 to the present time in the Republic of Kazakhstan was a significant reduction in the prison population from 70,000 to 46 and a half thousand people. Today Kazakhstan is already in the nineteenth place [5]

Literature:

1. http://ru.wikipedia.

2. Normative Ruling of the Supreme Court of 19.10.2001 N 15
" On some issues of punishment of imprisonment "

3. http://www.tarasei.narod.ru/ref2003/ugol2.htm

4. The Criminal Code of the Republic of Kazakhstan dated July 16, 1997 № 167 -I ( with alterations and amendments as of 12.01.2012)

5. Bekbosyn CM. Public safety and contemporary issues of the penitentiary system in Kazakhstan: Proceedings of the international scientific-practical conference. - Kostanay: Kostanaiskiy Law Institute of Committee MIS MJ RK 2004. - P.3-4.