Uslovni otpust i kaznena politika

The subject of the article is an analysis of the non-custodial sentencje known in Poland as curtailment of liberty (and thus excluding fines) as an important instrument of penal policy in the 1970-1998, the main focus being on two strands or this policy–legislative policy and penal policy–to the exclusion of the latter’s administrative aspects. In the light of the guiding principles of the 1969 Criminal Code non-custodial sentences were intended to become an important penal policy measure for treatment of perpetrators of minor offenses and at the same time to provide a substitute for short terms of imprisonment, which had been found relatively ineffective as a means of achieving rehabilitation of convicted offenders. However, the normative extent of the code’s provision for non-custodial penalties proved to be relatively narrow. Within the range of alternatives to custodial punishment curtailment of liberty was an option available only under 17.5% of the defined offenses. Under Article 54 §1 sentencing to curtailment of liberty was admissible for 24% of all offenses and under Article 57 §1.3 for 27.9% of the total. The potential possibilities of non-custodial treatment of offenders were circumscribed by the provisions of Articles 54 §2, 52, 59 and 60. A significant influence on the frequency of sentencing to curtailment of liberty was the actual incidence of criminal acts punishable by alternative form of treatment. Based on an analysis of Ministry of Justice and judicial statistics it appears that such acts were not among the most frequently committed offenses, amounting to about 10% of all convictions. The systematic growth of the proportion of sentences to curtailment of liberty, from 6.2% in 1970 to l8% in 1980, should, therefore, be regarded as achievement of the maximum level of possible sentences of this kind. If we consider the share of curtailment of liberty in the structure of sentences for offenses punishable by alternative forms of treatment we will find that there was a judicial bias towards curtailment of liberty. The frequency of such treatment of offenders fluctuated between 32.83% and 56.54%, while the range for fines came to 21.26%‒5I,99 % and for imprisonment to 3,4%‒21.26%. It can, therefore, be said that in the first decade following the 1969 Criminal Code’s entry into force curtailment of liberty fulfilled the purpose envisaged by the lawmakers, that is as an alternative to short terms of imprisonment. Undoubtedly, a factor contributing to the increase in the proportion of non-custodial sentences in the structure of final and conclusive judgments was the jurisprudence of the Supreme Court, in particular its guidelines for the administration of justice and judicial practice issued on 30 May 1979 (VII KZP 31/1977) concerning sentencing policy with respect to offenses for which the prescribed punishment is, interchangeably, imprisonmet, curtailment of liberty or a fine. Imprisonment, these stated, should be a penalty imposed only in the last resort when non-custodial forms of treatment are deemed incapable of performing the function of protection of the legal order. If a salient characteristic of the 1970s was stability of legislative policy, which precluded the possibility of shaping penal policy by means of legislation, the 1980s, or more precisely the period from 12 December 1981 to 1989, saw the emergence of a tendency in the opposite direction. For it brought the adoption of numerous basic amendments in criminal legislation, the general thrust of which was towards severer difinition of criminal responsibility. This was reflected in a decrease in the proportion of non-custodial sentences in the structure of final and conclusive judgments (from 15.6% in 1981 to 8.2% in 1984) and a concurrent increase in the frequency with which courts sentenced offenders to imprisonment (from 25.3% in 1981 to 33.1% in 1984). During the years in which the rigorous provisions of the Special Criminal Responsibility Act were in force, that is in the period from 10 May 1985 to 30 June 1988, there was a systematic rise in the proportion of curtailment of liberty in the structure of sentences (from 10.1% in 1985 to 17.4% in 1987), which might have something to do with the introduction by the May legislation of provisions allowing for non-custodial treatment of offenders in summary proceedings. The 1988 amendments to the Criminal Code, aimed at relaxing definitions of criminal responsibility, included, albeit in only a limited degree, provisions relating to the applicability of curtailment of liberty. These changes reflected a desire to increase the significance of non-custodial treatment in penal policy. However, in judicial practice there ensued a decrease in sentencing to curtailment of liberty, from 10.5% in 1989 to 5.3% in 1990. The period of political, economic and social change in Poland which began in 1989 stimulated criminal law reform. The aim of numerous legislative change which followed was to reduce the punitive character of the Criminal Code. One reflection of this was greater provision for non-custodial treatment of offenders (introduced by the new Criminal Code enacted in 1995) through a broadening of the grounds for commuting sentences of imprisonment to curtailment of liberty or a fine under Article 54), reduction of the role of repeated criminality as an aggravating circumstance in punishment of offenders, and abolition of extended sentences for offenses classified as "hooligansm" or committed by repeat offenders. In 1991-1995 the share of curtailment of liberty in the structure of sentences held steady at a level of 3.5%‒3,9%, making it the lowest ever for the period in which the 1969 Criminal Code was in force. This was not a result of the greater repressiveness of the criminal justice system since we observed a drop in the frquency of sentences of imprisonment. The courts tended to favor the use of conditional suspension of custodial sentences (the share of which rose from 43.9% in 1989 to 55.1% in 1997) and fines (up from 4.9% in 1989 to 27.4% in 1997). The explanation should, rather, be sought in problems with execution of sentences to curtaiment of liberty, chief among them the job shrinkages caused by changes in the free-market economy. Analysis indicates that curtailment of liberty did not fulfill the expectations associated with this form of punishment. It did not become a significant instrument of penal policy nor did it contribute to reducing the scale of sentencing to terms of imprisonment. Even after a substantial widening of provision for punishment by curtailment of liberty its share of sentences ordered by the courts reached a level of only 5.2% (in 1977). The new Criminal Code has substantially expanded the possibilities of sentencing offenders to curtailment of liberty. This form of punishment is intended to be an important instrument of penal policy with respect to misdemeanors and minor offenses and to replace imprisonment and even fines if ordering the latter is thought to serve no purpose. At the same time the Criminal Code has introduced modifications in the legal shape of this punishment. By preserving, contrary to the intentions of the code’s original drafters, multivariate forms of punishment it gives curtailment of liberty some of the hallmarks of probation by introducing the possibility of imposing certain additional conditions and establishing supervision. The new elements in the design of curtailment of liberty have met with numerous criticisms of the doctrine (including by the authors of the article). How it will affect the functioning of the institution analyzed the immediate future will tell.

Purpose. The purpose of the work is to study the extension of the principle of retroactivity to law-making and law-enforcement practice to the legal system in Ukrainian legislation. Methodology. The methodology includes a comprehensive analysis and generalization of the available scientific and theoretical material and the formulation of relevant conclusions. The following methods of scientific knowledge were used during the study: comparative law, logical-grammatical, system-structural, modeling. Results. During the study, it was recognized that in the legislation of Ukraine, in the process of creating and implementing legal norms, general principles of law are applied, which are guided by state authorities and local governments in their activities within the framework of their competence. When adopting new regulatory legal provisions or making changes to existing ones, general principles of law must be applied. The application of the principle of retroactivity of law allows individuals and legal entities to be confident in the legal assessment of their actions not only when they are committed, but also in the future. Scientific novelty. In the process of research, it was scientifically substantiated that the criminal procedural legislation of Ukraine as a whole complies with the Fundamental Law of Ukraine and the practice of the European Court of Human Rights during criminal proceedings when changing the punishment for committing criminal offenses. Practical significance. The results of the study can be used in law-making activities in the further improvement of national criminal procedural, criminal legislation regarding the improvement of the institution of the application of punishment when improving the legislation on punishment for committing criminal offenses, as well as in the educational process during the teaching and study of the academic disciplines “Criminal Procedural Law of Ukraine”, “Criminal Law”, “Law Enforcement Activities”, “Advocacy”, others.

Modern penal policy has compelled various criminal legislations to reconsider and move toward a penal policy that departs from the traditional one represented in custodial penalties, due to their negative effects which outweigh their reformative and rehabilitative impacts on the convicted person. Custodial sentences destroy the personality of the convict, and their negative consequences extend to his family members and society as a whole. The system of electronic monitoring, or the electronic bracelet, is one of the modern mechanisms that emerged as a result of the ideas of the Social Defense School in most criminal legislations, including Algerian criminal legislation. The latter recently adopted the application of the electronic monitoring system through Law 18-01, supplementing the Law on the Organization of Prisons and the Social Reintegration of Prisoners. This system constitutes the subject of our study.

Modern penal policy has compelled various criminal legislations to reconsider and move toward a penal policy that departs from the traditional one represented in custodial penalties, due to their negative effects which outweigh their reformative and rehabilitative impacts on the convicted person. Custodial sentences destroy the personality of the convict, and their negative consequences extend to his family members and society as a whole. The system of electronic monitoring, or the electronic bracelet, is one of the modern mechanisms that emerged as a result of the ideas of the Social Defense School in most criminal legislations, including Algerian criminal legislation. The latter recently adopted the application of the electronic monitoring system through Law 18-01, supplementing the Law on the Organization of Prisons and the Social Reintegration of Prisoners. This system constitutes the subject of our study.

It is virtually impossible to write about comparative law without beginning with a comment on the phrase itself. As has often been observed, there is no such thing as comparative law. Even though comparative law as a branch of legal study had secured definite recognition during the latter half of the 19th century, the confusion of terminology persisted well into the 20th century. This may account in part for a debate about the nature or definition of comparative law, which today seems unnecessary, if not actually barren. This chapter discusses comparative law in 20th century England, the formation of the Society of Comparative Legislation in December 1894, the contributions of Sir John Macdonell in the field of comparative law, contributions of the émigré legal scholars to the modern literature of comparative law, research on comparative law during the 1930s and the years during World War II, and law reform and legal education in England.

The Institute of Legislation and Comparative Law under the Government of the Russian Federation (ILCL) is the only scientific legal institution in Russia that has been conducting crosssectoral research on issues of criminal liability of legal entities for many years. In the context of the scientific and legal assessment of corporate criminal liability, the author examines the works of scientists of the Institute published in the Soviet and post-Soviet periods of the development of domestic jurisprudence. The article describes the research of international documents containing recommendations on the introduction of criminal liability of legal entities, as well as provides models of this kind of liability in the legislation of some foreign countries. The features of the responsibility of legal entities for certain types of crimes, such as corruption, economic and entrepreneurial orientation, are revealed. The purpose of the study is to analyze the formation and development of scientific ideas about the criminal liability of legal entities in their relationship with changing socio-economic relations and political processes in society, to identify on this basis trends in the development of corporate criminal liability and to predict possible options for the implementation of this institution in Russian criminal legislation. The methodological basis of the research is the dialectical method of cognition, general scientific methods of analysis, synthesis and abstraction, and special legal methods. The results obtained and the main conclusions. In the works of scientists of the Institute, the nature and types of criminal liability of legal entities, on the one hand, are considered from the point of view of historical retrospect, on the other hand, they are revealed as a direction of development of criminal legislation, which has experimental models of approbation in the jurisdictions of many foreign countries. The essence of the institution of criminal liability of legal entities is to apply sanctions to these entities in criminal procedure for committing acts provided for by national criminal codes or other laws. At the same time, legal entities can be recognized as subjects of a crime, and only as subjects of criminal liability. In turn, sanctions for them can be both criminal penalties and other measures of a criminal nature. The legislative consolidation of such responsibility in Russian law will not require fundamental changes in it. The doctrinal foundation for substantiating the relevant legislative decisions is the works of scientists from the ILCL.

Purpose. Criminal legislation has the task of protecting the state system and social system, their individual structures and institutions. The peculiarity of the Criminal Code of 1903, regarding these tasks, is that it was adopted in an exceptional and special historical period of time. First of all, this circumstance is associated with the period of time that covered the development of criminal legislation during the 19th century, which was reflected in its system, structure and criminal law norms. Secondly, as noted in the preamble of the Criminal Code of 1903, it is adopted in the context of the ongoing state and social transformations, taking into account the requirements of new decisions. Significant changes related to the formation of criminal law provisions providing for liability for violation of the rules of management, use, maintenance and disposal of transport. It should also be noted that the Criminal Code of 1903 represented and was the basis for the development of criminal legislation of the new century, including criminal liability for transport crimes. Methodology: dialectics, abstraction, analysis, synthesis, deduction, — formal legal method, comparative law method. Conclusions. Firstly, the second half of the nineteenth century is characterized by the active construction of the transport system and its infrastructure; secondly, the need arose to form special governing bodies that were not previously provided for in the structure of government bodies of the Russian Empire; thirdly, the safety of traffic and operation of transport required full legal support for the management of the transport system; fourthly, the organization of transport traffic required the formation of institutions and employees for the training of specialized specialists; fifthly, the task of uninterrupted operation of the transport system and the movement of vehicles predetermined the need for systematic maintenance and repair of vehicles and transport infrastructure, sixthly, points/ stations for the formation of trains, loading/reloading of goods and boarding/transfer of passengers deserved to be formed and provided; seventhly, the need arose to form transport teams, determine for them the place and time of meals, rest and interchangeability, and then, as a necessary component of any activity, the function of monitoring the movement of vehicles, especially their technical equipment, was predetermined in order exclusion of accidents. Scientific and practical relevance. To specify the categories of the Criminal Code of 1903 under consideration in order to determine their meaning and place in the current national criminal legislation and in the science of criminal law. Use the results in the preparation of regulations providing for liability for encroachment on the safety of traffic and operation of vehicles, in a complex modern management system in the field of organization and operation of transport, especially in international and related areas, as well as in the educational process when training specialists in the field law enforcement.

Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Clarendon Studies in Criminology) M.Pifferi. Oxford: Oxford University Press (2016) 305pp. £70.00hb ISBN 978‐0‐19‐874321‐7

Sentence of juvenile imprisonment is analyzed in its theoretical aspect and then in the aspect of legislative regulation in positive criminal legislation. Taking into consideration the content and legal nature, in practice this subject is mainly defined through criminal law in its material aspect, with certain explanation of those questions that are related to procedural and executive law to that level which the subject of investigation allows. In the perspective of criminal law, the legal terms in both national and comparative juvenile legislation are analyzed, in order to determine the complete sense and justification of the punishment. The analysis is done through interrelations of juvenile imprisonment sentence and certain institutes of criminal law, then relevant theoretical and practical concepts and discussions. Normative aspect aims to better explain the content and function of this punishment based on certain legal modification both in national and in comparative law, especially in European criminal legislation. Criminal justice analysis of the terms of juvenile court, contributes to clear differentiation from other criminal sanctions, above all, corrective measures, with special effect on its practical use. The investigation made in regards to the content, conditions of passing and justification of juvenile imprisonment sentence provides certain knowledge of its efficacy and justification in the system of criminal sanctions. The necessity of studying general and specific circumstances for its imposing contributes to more complete approach to the discussions both in the theory and court practice. Allowing the possibility that the sentence of juvenile imprisonment is only imposed on senior juveniles, simultaneously leads us to think that a special attention will be paid to two groups of circumstances: level of maturity and necessary time for both behavioral and professional education of the juvenile. In parallel to this aspect, some other questions appearing both in theoretical and practical aspect of this serious and only punishment have been discussed.

To overcome the problem of drug crimes, it is necessary to have a criminal law policy (penal policy). This policy must be concentrated on two things, the first is aimed at applicable policies, namely policies on how to apply the criminal law laws and regulations currently in force in order to deal with drug problems and the second is formulative policies or policies that lead to reform of criminal law (penal law reform) namely policies on how to formulate criminal law legislation which is also related to the concept of the new Criminal Code (KUHP), especially in the context of tackling drug crimes in the future. This research uses a descriptive analysis methodology with a normative juridical approach with secondary data sources. It is hoped that the results of this research will be able to provide answers regarding the most appropriate form of sanctions to be applied to perpetrators of drug crimes. The policy of formulating criminal sanctions according to the drug law in the future for perpetrators of drug crimes in Indonesia is in line with the general provisions contained in the National Criminal Code (KUHP) Concept and in accordance with the decision of the Constitutional Court regarding the death penalty provisions, taking into account: The death penalty is no longer a crime. principal, but as a special and alternative punishment, the death penalty can be imposed with a probationary period of ten years which, if the convict behaves commendably, can be changed to life imprisonment or 20 years g. The death penalty cannot be imposed on children who are not yet adults. The execution of the death penalty against pregnant women and someone who is mentally ill is postponed until the pregnant woman gives birth and the mentally ill convict recovers.

The article is devoted to modern approaches and the formation of author’s proposals regarding new provisions implemented in the criminal policy pursued by the Republic of Kazakhstan. It is noted that the criminal policy has three components: criminal, criminally-remedial and penal policies. It is possible and necessary to determine the degree of effectiveness of the implemented criminal policy only on the basis of the results of all its components and the development of modern preventive measures in order to prevent crime. The analysis of the criminal, criminally-remedial and penal legislation of the Republic of Kazakhstan in the field of types of punishment, their appointment and execution is carried out. In order to maintain further progressive development of the country, the strategy of further reduction of the «prison population» with the help of widespread use of punishments alternative to imprisonment, the development of a system of social adaptation and rehabilitation of persons caught in the sphere of criminal proceedings, is supported. In order to improve the penal legislation of the Republic of Kazakhstan, it is proposed to develop a new draft of a bill «On the Execution of Sentences and the Probation Service». One bill should regulate the types of punishments (from fines to imprisonment and the death penalty), the types of penal bodies and institutions included in the penal (penitentiary) system, the procedure of executing (serving) all types of criminal punishment, as well as social adaptation and rehabilitation of persons who find themselves in the field of criminal proceedings, etc. A new title of the draft of a bill is also proposed. It is «The Law of the Republic of Kazakhstan «On the Execution of Sentences and the Probation Service»». The title of the draft of the Criminal Penal Code proposed by us most fully reveals the legal essence of the new normative legal act. The implementation of the new laws specified in the Criminal Penal Code of the Republic of Kazakhstan urgently requires to create an independent state body – the Agency for the Execution of Punishments and the Probation Service. Key words: humanization of criminal policy; criminal, criminally-remedial and penal policy; penal (penitentiary) system; punishments alternative to imprisonment; social adaptation and rehabilitation of persons who find themselves in the field of criminal proceedings.

The article deals with the problems of implementing the universally recognized principle of equality in penal enforcement policy and guaranteeing the rights of convicts, as well as suspects accused of committing crimes in custody. The fundamental rights of convicted and detained persons are analyzed. It is proved that not all fundamental rights of convicted and detained persons are guaranteed by law in accordance with the principle of equality, which is among the universally recognized principles of international law and is aimed at international legal protection against discrimination. It is proved that the penal enforcement legislation does not provide for legislative restrictions guaranteeing protection against discrimination on any grounds. In the case of convicted and detained persons, there are often inequalities in gender, age, property and legal aid. Now an opportunity to serve prison term concerning women and minors at the place of residence as it is provided for men isn't enshrined in the criminal and executive legislation. Such a legislative decision contributes to the severance of family and socio-useful ties among convicted women and minors. The prohibition of the use of technical means by lawyers in the territory of a correctional institution is discriminatory, since it infringes on the right of convicts to receive qualified legal assistance, guaranteed by the Constitution of the Russian Federation. The article shows the differences in penal policy between the haves and the poor, which is also classically discriminatory and unacceptable. It was concluded that the implementation of universally recognized principles of international law, including the principle of equality of citizens before the law and the court, is the responsibility of the legislative and law enforcement agencies and contributes to the achievement of the goals of criminal enforcement legislation, as well as to strengthening citizens' faith in the institutions of State power.

In the context of transforming criminal policy, there is a humanization of the convicts detention conditions in places of deprivation of liberty, implementation of international legal acts in criminal and penal enforcement legislation, and expansion of the scope of applying alternative non-penitentiary sanctions. With the implementation of the new criminal legislation, the number of ‘prison population’, the bulk of which accounts for the use of conditional sentences, has decreased. The importance of this conditional sentence is due to the fact that reducing crime does not necessarily entail changes in the nature of punishment in the direction of strengthening the role of persuasion and the influence of organizations. These changes have been implemented through legal institutions that economically spend criminal repression, mitigating the coercive effects of punishment. Within the framework of legal science theory, there are different views on the legal nature of a conditional sentence. Therefore, due to the lack of a unified approach to solving issues related to the establishment of the grounds for the use of the institution of probation, the conditions performed by convicts during probation control, the determination of criminal record, the removal of criminal record, difficulties may arise. Moreover, in recent years, most of the repeat offenders have been conditionally convicted. All this actualized the issue of improving the institution of probation. Taking into account the theoretical and practical significance of the correct definition of the legal nature of a conditional sentence, the authors consider the concept of a conditional sentence and its legal nature and analyze various points of view of researchers, as well as explain the reasons for the appointment and refusal of a conditional sentence.

The article explores the Platonic roots and the Aristotelian essence of such a leading academic subject as comparative law. Comparative law is not a creation of the 20th century, even though modern comparative law, as we know it, has indeed matured and developed in the 20th century. The journey of comparative law commences with Plato and Aristotle, even though it was Aristotle that seems to have placed comparative law on its academic rails through his extensive, systematic, and rigorous comparative exploration of constitutions. Nevertheless, Plato must have inspired his best student, Aristotle, in the examination of comparative legal matter. Equally, the mastermind and the driving spirit behind the subject of comparative law, as it came to flourish in modernity, seems to have been Aristotle. Generations of comparative lawyers from Lambert and Salleiles to Zweigert, Kötz, and David effectively cultivated a subject which is quintessentially Aristotelian, despite the subject’s apparent Platonic roots. This exposition proves, substantiates, and analyses the Aristotelian spirit of our subject, a subject which has inspired the discipline of law, Academia, and the world, the article taking a balanced approach between the subject’s Platonic roots and the subject’s Aristotelian essence.

The article is devoted to the development of the form of forced labor within the framework of the Concept of development of the penitentiary system of Russia for the period up to 2030, and also identifies the main gaps and achievements of this form of punishment. Some ways of solving these problems are proposed, in the form of amendments to the current criminal legislation. The Ninth Census of Convicts served as an empirical basis for the study, and draft laws of various departments on this topic are also being studied. The object of the study is public relations in the field of criminal law, criminal procedure and penal enforcement law. The subject of the study is the norms of criminal law, criminal procedure law, as well as the provisions of the Concept of the development of the penitentiary enforcement system of Russia for the period up to 2030. The research methodology is based on a comprehensive and multi-layered approach, which includes key analytical, empirical, statistical and comparative methods. Forced labor as a new measure of punishment has a vivid and, in a sense, global impact on various spheres of society. In practice, problems of a legal and organizational nature related to the procedure for the execution of this type of punishment are identified. There is a clear understanding of the goals and guidelines for the development of not only "forced labor", but also criminal and penal enforcement policy in the state at this stage, but so far there are some difficulties in translating theory into practice, and there is also a need for a deeper rethinking of some provisions in criminal legislation. The scientific novelty of the research lies in the form of author's proposals to amend the current criminal law and criminal procedure legislation of Russia.