Права осужденных в исправительных учреждениях: ограничения и обеспечение

Abstract

The theory of criminal and penal (executive-labour) law has historically developed two main approaches to the definition of deprivation of liberty. The first one, which, conventionally speaking, can be called 'substantive', consists of attempts to exhaustively establish the entire set (legal substance) of personal law restrictions, the set of which forms the legal content of this punishment. As noted above, attempts have also failed to achieve the objective, as the enumeration of many specific restrictions has always ended with disclaimers such as "etc.". Other scholars, whose approach can be termed 'attributive', have prioritised and continue to prioritise the inherent institutional 'attribute' of a custodial sentence - a special state institution that ensures isolation under guard . The legislator's approach is contradictory. On the one hand, based on the general definition of punishment (Part 1 of Article 43 of the CC), it demonstrates a 'substantive' one. On the other hand, it is 'attributive', saying that deprivation of liberty "consists in the isolation of the convicted person from society by sending him to a settlement colony, placement in an educational colony, a medical correctional institution, a penal colony of general, strict or special regime, or a prison (Article 56 of the CC)". The situation is similar in the Penal Enforcement Code of the Russian Federation. The General Part (part 2 of Art. 10) states that "in the execution of punishments the convicted shall be guaranteed the rights and freedoms of citizens of the Russian Federation with the exceptions and restrictions established by the criminal, criminal-executive legislation of the Russian Federation", which in general corresponds to part 3 of Article 55 of the Constitution. 3 Art. 55 of the Constitution and part 1 Art. 43 of the CC, but in comparison with the latter the range of legal sources of these restrictions is significantly expanded: Art. 43 speaks about the restrictions established only by "the Code," while the Penal Enforcement Code also speaks about the "criminal-executive and other legislation. In any case, within the meaning of part 1 of Article 2 of the CEC, this should be a source at the level of a federal law. In addition, part 4 of Article 10 of the CEC provides that "the rights and obligations of convicted persons shall be determined by this Code on the basis of the procedure and conditions of serving a particular type of punishment". The practice of prosecutorial supervision also does not recognize the "demands" of the prosecutor in the field of criminal execution, and prosecutors include them in acts of inspection, protests and submissions [7, p. 116]. The "demands" as forms of prosecutorial response are not reflected in the statistics of the Russian Federal Penitentiary Service. According to its data, in 2021 prosecutors issued only 23615 acts (in 2020 - 22755). These included representations (71% and 69%, respectively) and protests (18.5% and 20%, respectively). As a result, the relevant provisions of Articles 33 and 34 of the Law on the Prosecutor's Office. 33 and 34 of the Law on Prosecutor's Office, unfortunately, still remain a declaration, significantly limiting the potential powers of the Prosecutor's Office in its supervisory activities in the field of ensuring human rights in places of detention and other compulsory detention facilities. The author declares no conflicts of interests.