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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TAJIKISTAN

of November 30, 2004

On case "About determination of compliance of Item 2 of article 13 of the Criminal code of the Republic of Tajikistan to parts 1 and 3 of Article 10, to Articles 14, 20 and 84 Constitutions of the Republic of Tajikistan"

Constitutional court of the Republic of Tajikistan as a part of the chairman - the Chairman of the Constitutional court of the Republic of Tajikistan Aliyev Z. M., judges: Mustafokulova Sh. M., Nazarov M. N., Mukbilshoyev B. M., Abdulloyev L. I. and Komilova H. R.,

with participation of the court session secretary Raufov M. M.,

parties: the plenipotentiary citizen Schweitzer of G.E.advokat Yorov B. R., the plenipotentiary of Majlisi milli of Majlisi Oli of the Republic of Tajikistan in the Constitutional court of the Republic of Tajikistan - Makhmudova M. A., the plenipotentiary of Majlisi namoyandagon of Majlisi Oli of the Republic of Tajikistan in the Constitutional court - Rakhimova M. Z., plenipotentiary of the President of the Republic of Tajikistan in the Constitutional court of the Republic of Tajikistan Murodov D. H., invited - representatives of the Supreme Court of the Republic of Tajikistan Imomova B. I., Attorney-General of the Republic of Tajikistan Kamolov B. R. and court of the city of Dushanbe of Amirov N. Yu.

having heard the report of the judge Mustafokulov Sh. M., explanation of the parties and performance of the invited persons, having researched other case papers,

determined:

Citizen Schweitzer G. E. and his plenipotentiary Erov B. R. appealed to the Constitutional court with the petition in which it is specified that on October 8, 1999 sentence Frunze (nowadays Sino) the district of the city of Dushanbe Schweitzer G. E. it was sentenced as regards 1 article 104 of the Criminal code of the Republic of Tajikistan to 12 years of imprisonment.

This penalty was imposed taking into account committed acts by it, the circumstances which are mitigating responsibility, the identity of the convict and the victim, and also the arisen effects.

In May, 2004 changes according to which criminal liability as regards 1 article 104 of the Criminal code of the Republic of Tajikistan is established in the form of imprisonment from 8 to 15 years were made to the Criminal code of the Republic of Tajikistan.

In case of removal of sentence concerning Schweitzer G. E. according to part 1 of article 104 of the Criminal code of the Republic of Tajikistan (in edition of 1998) custodial sanction of 12 years, then the lowest limit of the punishment prescribed by this Article is imposed the upper limit in 15 years of imprisonment was established in 12 years, and.

After adoption of the new law addressing taking into account that the penal statute commuting penalty has retroactive force, demanded its application concerning Schweitzer G. E. For this purpose they took a legal action the city of Dushanbe, the Supreme Court, but based on requirements of Item 2 of article 13 of the Criminal code of the Republic of Tajikistan was refused to them it for the reason that the upper limit of the punishment prescribed by the new law is equal to upper limit of the punishment prescribed by the old law as according to Item 2 of article 13 of the Criminal code if the new penal statute commutes penalty of act for which making person serves sentence, is subject to reducing only according to the upper limit set by the new penal statute.

With respect thereto, the condemned Schweitzer G. E. and his lawyer Erov B. R. without having agreed with the reply of the above-stated bodies, 20 and 84 Constitutions of the Republic of Tajikistan appealed to the Constitutional court with the petition for determination of compliance of Item 2 of article 13 of the Criminal code of the Republic of Tajikistan to parts 1 and 3 of Article 10, to Articles 14,.

Constitutional court of the Republic of Tajikistan, having checked and having discussed arguments addressed that the regulation of Item 2 of article 13 of the Criminal code of the Republic of Tajikistan does not meet standards of part 1 of Article 10 and article 20 of the Constitution of the Republic of Tajikistan, and also the additional petition of the plenipotentiary the condemned Schweitzer G. E. - the lawyer Erov B. R., shown in judicial session that this regulation of the Criminal code also not of sootvetstvuyetchasta 3 Articles 10, to articles 14 and 84 of the Constitution of the Republic of Tajikistan notes that regarding 1 article 10 of the Constitution of the Republic of Tajikistan is established: "The constitution of Tajikistan has the highest legal force, its regulations have direct action. The laws and other legal acts contradicting the constitution have no legal force". In part three of this Article it is said that "the international legal acts recognized by Tajikistan are component of system of law of the republic. In case of discrepancy of the laws of the republic acknowledged internationally - to legal acts regulations internationally - legal acts are applied".

In article 14 of the Constitution of the Republic of Tajikistan it is determined that "rights and freedoms of man and citizen are regulated and protected by the Constitution, the laws of the republic recognized by Tajikistan internationally - legal acts.

Rights and freedoms of man and citizen are performed directly. They determine the purposes, content and application of the laws, activities of the legislative, executive and local authorities, local government bodies and are provided with judicial authority.

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