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Головне меню

Науково-практична Інтернет-конференція 13.04.2017 - СЕКЦІЯ №5
It is his most important policy to effectively organize the policy against crime in the system of functions of each state. The effectiveness of the fight against crime is firstly ensured by the effectiveness of the regulatory mechanism. In modern times, ensuring the effectiveness of the regulatory mechanism is distinguished between the following directions: a) the development of legal creativity in the interest of legislative tribunals, taking into account the public interests in law and their regularity in the frameworks to which they apply. It is necessary to create such an environment with legal and informative means that it would be more appropriate to obey the law than to disrupt it. b) the refinement of the constitution adds to the reality of the normative tradition and develops the mechanism of general legal representation. It is necessary to combine regulation and application of law, otherwise, to review them separately results in demonstration of their own «weak points». Normative regulation alone leads to formalism, application of the laws without normative regulation leads to chaos. c)  the promotion of jurisprudence of legal subjects serves to improve the quality of the law, the rule of law and legality.
The development of the mechanism of legal regulation of human interests acts as an important orientation to increase its effectiveness. The legal mechanism of guarantee of these interests must have social value due to the nature of legal mechanism, and it must create a regime suitable for the implementation of the legal status of identity and legal initiatives [2, p. 229-230].
The basis of struggle of the state against crime is criminal legislation which determines the scope of social dangerous work. While this law clarifies the period of civil legal affairs, which is considered as a crime, it determines the principles of exemption from responsibility and punishment for these crimes, which is one of the basic characteristics of the struggle against crime and its effectiveness.
Consideration of human interests is one of the important tasks to improve the legal regulatory system of policy of struggle against crime. It is not possible to ensure the effectiveness of legal mechanism without considering human interests. One of the aspects of crime legal-policy is the institution of reconciliation and mediation which is one of its manifestations. The mediation institute is the main institutional institution that is important for the determination of human interests in the criminal proceedings process.
Although it is possible to put forward various opinions and opinions about the regulatory principles of the mediation institution in the Azerbaijani Republic criminal and criminal law, it can not be said that it is regulated in detail in the legislation in force. It is possible to observe the aspects of different legal fields with mediation. Before we distinguish between the separate issues of the mediation law institute and the conceptual and experimental issues, we will describe it by revealing the most respected qualities of the various legal fields. It is important to narrow for understanding. Very broad interpretations can not be considered concepts. To really understand something, it is important to describe it. As in the definition of «definitio» in Latin – the term «definire» means «to put an end» or «draw boundaries», the conception must be acceptance frames at a reasonable level. Otherwise, everyone connected with the quote which will make sense of it, so discourse will not be possible.
In each case, while the Azerbaijan is talking about the legal basis of the mediation in the murder process, it is necessary to take the decision of the Constitutional Court of the Republic of Azerbaijan dated 15 July 2011 on «the explanation of the Articles 37.4, 39.1.9, 40.2 and 41.7 of the Azerbaijan Republic Criminal Procedure Code» as the starting point. The Constitutional Court summarized the world experience of the media in the related decision and gave a brief explanation in the Azerbaijani Republic criminal procedure law. The court’s decision shows this: «Many countries are striving to implement criminal alternative measures. These measures serve to reduce the workload of the investigation-judiciary system, to provide criminal rights and the interests of the state together with criminal enforcement agencies. We can show two basic models of alternative measures implemented in the criminal justice system of foreign states. The first model – the so-called transaxia «Netherlands – Belgium» model. The second model, which is extensively involved in criminal law in foreign countries, is called mediation. This model is available in different options (simple and complex). According to this model, if the accused person pays the punishment, mediation procedures are used to reconcile him with the victim. The important feature of this system is that it is not passive constitution that mediation should be reconciled, but active measures by means of authorized sub-bodies for the solution of crime-legal dispute. For example, in Belgium, mediation can be applied to all offenses for up to 20 years imprisonment. The murder may be terminated if the following actions are taken by the person ordered: damage has been paid, treatment course has passed, specialist training has been taken, and so on. At this moment the mediation is also available in this or the other option in Germany, Austria, Portugal, France and other countries.
In the section of simple mediation (the draft belongs to us – author), we see Article 73 of the Criminal Code in the criminal law of the Republic of Azerbaijan. According to this rule, criminal who has committed no serious public danger for the first time can be exempted from the criminal responsibility when he/she reconciles with the victim and pays the damage or removes the loss [3].
In order to understand the mediation institute in the murder process, it is necessary not only to take into account the criminal and criminal procedural aspects, but also aspects of civil and labor and other legal aspects. In this regard, theoretical framework or proposed definitions of mediation should be considered as well. 
While giving the understanding to the mediation, it is not successful to include to a definition the process of its implementation in various fields.
In criminal cases it is possible not only to see the nature of mediation in the 73th article of the Criminal Code of Azerbaijan Republic but also to associate with sincere repentance and the mechanisms that alleviate the punishment. It is impossible to deny the existence of elements related to exemption from criminal liability in connection with the sincere contrition. Also, sincere contrition may result in the initiation of punishment as a result of an optional authorization or termination of proceedings that have not been initiated. According to the Article 72.1 of Criminal Code of Azerbaijan Republic, when a criminal who has committed no serious public danger for the first time voluntarily pleads guilty and actively assists in the opening of the crime, he may be exempted from criminal responsibility. It is obvious from the difference between the Articles 72 and 73 of Criminal Code of Azerbaijan Republic that the damage is compensated or otherwise eliminated in the sincere contrition is as well as reconciliation. But consensus can not be used between parties in sincere contrition. Even though there is no reconciliation, the person is exempt from responsibility because of the fact that the damage that has been hit is compensated.
As the main objective of mediation is to repair the damage and to restore the previous status of the crime, the payment of the reconciled damage should also be considered in this frame. Indeed, if the parties involved in the restoration of the injured victim, such as voluntary jurisdiction, are not in reconciliation, but are in favor of dissolution, then mediation is not required to achieve the same result. Parties in the process of mediation in criminal proceedings should also be considered as legal consequences of the mediation process if payment of the damages comes about the relevant agreement in the course of the relevant year, which would in fact mean reconciliation, or if the parties are not in agreement during the mediation process but agree on payment of the damages. In any case, the context of the payment of damages under Articles 72 and 73 paragraphs gives us to conclude this review.
One of the main features of mediation in criminal matters is that the prosecution should not depend on the «alternative category of crimes», in any case, the desired alternative should be tied to voluntary authority. The main aspect of crimes in which mediation is applied is that this «crime refers to the interests of those who have met each other ... and threatens their relationship.» In other words, the application of the prosecution alternatives depends on the social conditions, not on the category of the crimes. Although the category and type of the crimes is the same, alternative measures should be applied in one case, and in other cases should not. So, it is stolen in all cases, regardless of whether the burglar is professionally, randomly, or stealing money from another family member of his family. However, each mentioned criminal offense should be differentiated in legal response. Without this direction, for example, the prostitution alternatives, including the mediation, would have lost their legitimacy if the professional thief himself was exempted from responsibility by «reconciliation» with the victim [4].
It should be emphasized that the main purpose of the mediation program should be related to the possibility of reconciliation. Therefore, in the Recommendation of Cabinet of Ministers dated R (99) 19, not only reconciliation, but also «solution of the problems arising from committing offense» is foreseen. It should be noted that the necessity of the formation of the mediation institute has not only been the reconciliation of the parties but also the elimination of the damage caused by the crime. For example, while the establishment of the institution of mediation in Valance, France, murder was obliged to pay damages for the crime, and the crime was subsequently waived. Therefore, in the context of mediation, the principal load is the payment of compensation. One of the alternative conditions of feisty pewmenship is that «the first time a criminal who has not committed a major social danger has committed a criminal damage or is stuck in another way». One of the contritions of alternative performance is that «the person who has committed a criminal offense for the first time caused no serious public danger pay damages or eliminates losses in the other way.» Obviously, even if the parties are not in reconciliation, in result of payment of damage or loss caused by the crime in another way the prosecution may be terminated. Based on the foregoing, we believe that contrition in an action can be considered as one of the manifestations of mediation. In this respect, we do not consider it appropriate to give definition to the mediation relating with the fact of the reconciliation of the parties. We think that it may be up to the mediation to obtain the desired legal agreement between the parties that decide to initiate or refuse to prosecute. Therefore, while giving a definition to the mediation in the criminal process, it should not be merely based on lege lata legislation.
1. CPC of AR. Baku, «Qanun», 2016. – 550 p.
2. Matuzov. N.I., Malko A.V. General theory of law and state.Textbook. – M. «Yurist», 2004. – 512p.
3. Azərbaycan Respublikası Cinayət-Prosessual Məcəlləsinin 37.4, 39.1.9, 40.2 və 41.7-ci maddələrinin şərh edilməsinə dair URL: http://www.constcourt.gov.az/decisions/207
4. Головко Л. Кто будет медиатором? URL: http://journal.zakon.kz/203622-kto-budet-mediatorom.html {jcomments on}

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