Execution Of Punishment Research Articles

On the Nature of Community Correction <br/>—Comments on Article 1 of the Community Correction Law

The nature of community correction has been controversial in Chinese academic circles, but a series of official legal documents have always made it clear that community correction is the execution of punishment. Based on the research of normative analysis and comparative analysis, the author believes that China’s probation belongs to the execution of punishment, so it is not correct to change the nature of community correction to “criminal execution” on the basis that the probation does not belong to criminal punishment in the Community Correction Law. This modification reflects the incorrect and incomplete understanding of the criminal law, and avoids the punitive nature of community correction, and It is not in line with the practice of developed countries as well. Furthermore, It is against the original intention and mission of introducing community correction in China. Therefore, legislation should restore the nature of penalty execution of community correction.

Проблемы правового регулирования некоторых форм содействия государственных органов работе уголовно-исполнительных инспекций по исполнению наказаний и мер уголовно-правового характера

The paper analyzes the problematic issues related to the legal regulation of assistance to state bodies in the work of penal inspections for the execution of sentences and measures of a criminal-legal nature that are not related to isolation from society. Measures of procedural coercion in the form of bringing convicts evading to appear at the court session are considered, the possibility of additional regulation of the forced bringing of all convicts to punishments and measures of a criminal law nature is studied. Amendments to the relevant regulatory legal acts, according to the author, significantly optimize the work on the execution of punishments and measures of a criminal related to the timely application of penalties and prevention of law-abiding behavior. The implementation of the formulated proposals is designed to optimize the legal regulation of assistance in the work of penal inspectorates and to contribute to the achievement of the goals of the penal legislation in terms of preventing convicts and other persons from committing crimes and other offenses.

Optimization Principles of Penal Execution System of Russia in the Context of European Penitentiary Practice

Russia’s accession to the European Council and ratification of the European Convention on Human Rights caused considerable improvement of detainees’ living conditions. However, at present these transformations are inert and unstable. The framework for the development of the penitentiary system of the Russian Federation for the period until 2020 in terms of the study and dissemination of foreign experience in the area of execution of penalties is the subject-matter of research. The dissemination of this experience however can prove both progressive and regressive meaning for the optimization of domestic penitentiary system. The use of the method of legal-comparative studies, stressing the importance of the European example in execution of penalties, gives the opportunity to add some principles to the domestic penitentiary system, and among them: reciprocity of mutual interests of personality, society and state; feasibility to use foreign penitentiary experience; consistency that makes it possible to avoid conflicting between national and international law from the point of view of social economic facilities to realize humanitarian standards; the systematic issue as one of the capacity to suppose a clearly defined time sequence of publication and implementation of penitentiary norms. In the light of these principles the penitentiary policy of the Russian Federation is being criticized. Among applications of detainees to the European Court on Human Rights there is a tendency to increase the number of claims of violations of the detainees’ constitutional rights by the established prison security requirements. The results of this research testify about the possibility to use them while reviewing domestic conceptual framework of prison security which continues to express punitive claims primarily of the state to the detainee. Provisions of the European penitentiary rules are far from being fully realized in western prison systems, and that is why they are to be interpreted with the utmost care in legislative statements of the penitentiary legislation of Russia. The research is to conclude about the possibility to account on the critical remarks given in the article when working out on the Concept of modernization of the penal execution system (2021-2030)

Relationship of Concepts “Administrative Punishment” and “Administrative Responsibility”

The article discusses the development of a new scientific field – administrative penology, the subject of research of which is aimed at seeking to increase the efficiency of the appointment and execution of administrative punishment. The completeness of the study of the subject of administrative penology is directly related to the study of the concept of administrative responsibility. The relevance of comparing the two legal categories of administrative punishment and administrative responsibility is associated with the need to develop the missing legally relevant concepts with understanding nature of administrative punishment. The question is, why the legislator did not consider it possible in the legal definition of an administrative offense, instead of administrative responsibility, to establish a more specific and understandable sign – administrative punishment. In the final part of the work, it is noted that administrative responsibility and administrative punishment are concepts of one legal nature arising from an administrative offense, where the first concept is a general category, and the second concept is its derivative.

Пенітенціарна система Джеремі Бентама: нереалізований проєкт «ідеальної в’язниці»

The article describes the project of an innovative penitentiary institution – Panopticon by the English philosopher and jurist Jeremy Bentham. The author investigates the origins of the panoptic prison, identifies and analyzes the main components of the Panopticon penitentiary system. The importance of studying the Panopticon in the context of prison reforms and the formation of the concept of reformatory punishment in Great Britain in the late 18th - early 19th centuries is shown. The authors have traced the transformation of J. Bentham’s views on the regime of detention: from solitary confinement to block placement of convicts. Panopticon is a penitentiary house project developed by J. Bentham with the participation of his brother Samuel Bentham as an alternative to hulks and transportation. The spatial solutions of the building and strict rules of discipline were supposed to ensure permanent control with a minimum number of observers, which saved a lot of money. Bentham hoped not only to build a new, more humane prison, corresponding to the goal of correction, but also to create a profit-able enterprise using the labor of convicts. The Panopticon was to be managed by a private contractor. Jeremy Bentham created a well thought-out holistic concept of serving a sentence, covering all issues related to the functioning of a prison from an architectural solution to the management of an institution. The main goal of the Panopticon penitentiary system was prevention, both the general one - to be an example for others so that they refrain from committing crimes, and the special one - to correct convicts, to accustom them to law-abiding behavior. The Panopticon was not built in England during Bentham’s lifetime. The Holford Committee rejected the plan of the Panopticon to build the nationwide Millbank Penitentiary. But certain elements of the Panopticon penitentiary system were used in prison systems in the United States and Europe. These include strong rules of discipline, requirements for prison staff, cost-effectiveness of confinement, public control of the execution of punishments, and private prisons.

Законодательная техника и ее значение для правотворчества в сфере отраслей криминального цикла

The subject of research in this article are theoretical and applied issues of legal technology in criminal and penal law. The purpose of the work is to give an objective assessment of the use of the possibilities of legislative technology in the relevant branches of law of the criminal cycle. The study analyzes scientific ideas about the concept of legal technology, its types and constituent components. According to the authors the legislative technique is an integral part of the legal technique, which is a set of tools, techniques and rules developed by science and practice which are used by public authorities when carrying out, within their competence, lawmaking activities to develop and formalize the text of a law as well as other regulatory prescription. The article notes that it is the differentiated execution of punishment that is a prerequisite for individualization, justice of punishment and, consequently, its effectiveness. The authors consider it expedient to study these problems from the standpoint of the technical and legal design of legislation, since as it develops, the foundations, types and means of differentiation and individualization of responsibility have changed and improved. It is no coincidence that the legislative and technical improvement of the Criminal Code of the Russian Federation and the Penal Code of the Russian Federation is recognized today as one of the general directions of the development of Russian legislation on the criminal cycle and criminal policy in the first decades of this century.

О необходимости совершенствования уголовно-исполнительного законодательства Республики Беларусь в сфере исполнения наказаний в отношении осужденных с психическими расстройствами

О необходимости совершенствования уголовно-исполнительного законодательства Республики Беларусь в сфере исполнения наказаний в отношении осужденных с психическими расстройствами

Методологические подходы к изучению отечественной системы исполнения наказаний в научном творчестве современных исследователей: историко-правовые аспекты

Методологические подходы к изучению отечественной системы исполнения наказаний в научном творчестве современных исследователей: историко-правовые аспекты

Правове регулювання виконання покарань у виді штрафу

У статті окреслено проблеми виконання покарання у виді штрафу, розстрочки несплаченої суми штрафу чи заміни штрафу покаранням у виді громадських, виправних робіт або позбавленням волі, проаналізовано особливості притягнення до відповідальності за ухилення від покарання. Запропоновано зміни в нормативні акти з метою усунення виявлених колізій та неузгодженостей.

Реализация принципа дифференциации исполнения наказания в нормах уголовно-исполнительного законодательства Российской Федерации

In this article, the authors analyze the implementation of the intersectoral principle of differentiation of punishment in the norms of the criminal Executive legislation of the Russian Federation.
 The article analyzes the proposals and conclusions of scientists-penitentiaries on the application and implementation of intersectoral principle, however, the practice of implementing the principles in General, and the principle of differentiation of punishment in particular, remain today a key issue in the law enforcement activities of institutions and bodies of execution of punishment.
 Serious disagreements arise within the norms of the Criminal Executive Code of the Russian Federation on the implementation of the principle of differentiating the execution of sentences for men sentenced to imprisonment, recognized as a particularly dangerous recidivism and serving their sentences in a special penal colony when transferring them from one condition to another. The same shortcomings can be seen in relation to women sentenced to imprisonment in penal colonies of the general regime, that is, the norms of the Criminal Executive Code of the Russian Federation do not correspond to intersectoral principles, contradict the achievement of the goals of criminal punishment.

MATERIAL LIABILITY OF SENTENCED PERSONS – REALITIES AND PROSPECTS OF IMPROVING AND APPLICATION

The significance of the sentenced person's liability has been investigated. It applies to a convicted person in prison for a term of imprisonment, as an integral component of the educational influence on such person to correct and re-socialize him. The society is accustomed to perceive the State Criminal Enforcement Service of Ukraine as an institution, which by its function is intended to serve the sentences of a court, but the legislation also imposes on it the task of correcting and re-socializing the sentenced person using the methods and means of educational influence that go hand in hand with the execution of punishment. The liability of the convicted person is at the same time a criterion for evaluating the use of remedies and re-socialization and acts as an element of the same educational influence. Therefore, it is problematic for staff members of the Penal Institution to realize the need to apply the disciplinary and material responsibility of prisoners in the exercise of educational influence differently. The content of the article reveals the need to apply the liability of the convicted person as a normative-legal category, through the lens of educational influence on the convicts. It encourages creation of appropriate methodological recommendations and improving the mechanism of their application in the practical activity of the units of the Penal Institution. Аnd the need for appropriate changes at the legislative level regarding the mandatory rules on compensation for material damage caused to a sentenced institution while serving a sentence, which in turn will help to consolidate the foundation of one of the methods of educational influence. It is noted that the purpose of educational influence through material liability is realizing by the isolated person the fact of wrongdoing, legal and material consequences, as well as rethinking his act. This is important because convicts are not required to compensate for material damage. Therefore, there is a need to go to court for material damages, which can lead to a loss of value and "demand" for such educational influence from the staff of the institution.

From visible pasts to an invisible presence: new criminological reality after planetary cyber attack 12/05/17 Wannacry

The fourth industrial revolution is transforming crime and fight against it, causing fundamental consequences for research in the field of criminal law. Under the conditions of the second decade of the 21st century, the terms ‘Internet’, ‘information and telecommunications network’, ‘electronic network’, ‘communications facility’, ‘mobile communications’ are no longer an IT specialist dictionary, in the meantime they affect the doctrine of criminal repression and integrate into a scientific turnover of specialists in the field of criminal law and criminology. Transformation of crime has caused serious gaps, both in the theory of criminal law and in criminal procedural and criminal executive law inextricably bound with it. The emergence and exponential development of the Internet, electronic communications, control and tracking systems and many other technical achievements create for researchers three types of problems that need to be discussed and resolved. First, the problem of national sovereignty in criminal matters (the operation of criminal law in space) and jurisdiction, which are in contradiction in the boundless cyberspace. Secondly, the prognostic problem, which urges not only to forecast the influence of modern technologies on substantive criminal law, criminal procedure, execution of criminal punishment, but also to anticipate the general impact of technology on Russian society and the way of life of its members. Thirdly, the problem of expenses resulting from the introduction of high-tech crime prevention measures, the cost of which is constantly growing. The interdependence of these problems should form the basis of criminal law research in the era of augmented reality under the conditions of exponential growth of cyber threats directed at citizens, businesses and governments.

On Some Aspects of Mechanism of Prosecuting Juvenile Offenders Studying in Educational Institutions (in Terms of Irkutsk Oblast)

Activities for prevention of juvenile delinquency are carried out by various subjects of prevention, one of which is general education organizations. In general education organizations, along with minors characterized by socially positive behavior, minors are also trained in relation to whom various measures of criminal law and administrative influence are applied, as well as other categories of minors characterized by antisocial behavior. Imperfection of the legislative framework and absence at the federal level of a well-developed system of interagency cooperation between prevention entities negatively affects the work of educational institutions in the preventing juvenile delinquency, and in certain situations it creates a threat to violation of the rights and legitimate interests of citizens, including both minors and teachers. In this regard, consideration of the features of prosecution and execution of punishment for minors, who receive basic general education in general educational institutions, is of particular relevance.

Про деякі обов’язки державних органів, що пов’язані із виконанням покарання у виді позбавлення права обіймати певні посади або займатися певною діяльністю щодо засуджених у сфері пенсійного та соціального законодавства України

Про деякі обов’язки державних органів, що пов’язані із виконанням покарання у виді позбавлення права обіймати певні посади або займатися певною діяльністю щодо засуджених у сфері пенсійного та соціального законодавства України

ПРО КРИМІНОЛОГІЧНУ ХАРАКТЕРИСТИКУ ЗЛОЧИНІВ, ЩО ВЧИНЯЮТЬСЯ У СФЕРІ ВИКОНАННЯ ПОКАРАНЬ УКРАЇНИ

У статті здійснено кримінологічний аналіз злочинів, учинених в установах виконання покарань упродовж 1991–2018 років, а також визначено закономірності та тенденції, що склалися в цей період, які варто враховувати при організації запобіжної діяльності з цих питань.

Правовое регулирование общественного контроля за обеспечением прав осужденных: опыт России и Беларуси

The penitentiary service is a part of the state law enforcement system and its activities are related to the interests of society. In this case, the process of execution of criminal penalties may be accompanied with harm to law enforcement interests of persons detained in prisons. The practice of penitentiary services around the world shows that there are still cases of violations of the rights and freedoms of convicts. That is why special attention has been paid to the involvement of various social groups for monitoring the rights of convicts. In each individual state, the system of control over the activities of the penitentiary service varies depending on the social and state system, the type of legal system, and the level of development of democracy. At the same time, regardless of these factors, the control over the penitentiary service is expressed in the collection of information about the activities of penitentiary institutions, the detection of violations in their work, and at the final stage in the notification of the competent authorities about the violations, monitoring the elimination of violations and shortcomings, informing the public of the results of their work. Exercising control, most democratic states draw attention to the fact that prisons, as an important part of public life, must be information-based, open and democratic. The main task of monitoring should be to ensure compliance with generally accepted ethical standards in the execution of penalties related to isolation from society. So, according to the professor of the International center for prison studies at the University of London Vivien Stern: «The international community has said, and international law has also noted, that the whole process of depriving a human being of liberty from the moment of arrest to the moment of release from a correctional institution must be humane. Humane means ethical. Throughout this process, we must remember that a prisoner is a human being like us and has the right to have his or her human nature respected». The presented work is devoted to the description and analysis of legal regulation of public control over ensuring the rights of convicts in Russia and Belarus. The review reveals the actual problems of normative regulation activities of public control subjects, as well as provides a comparative legal analysis of the regulatory framework of Russia and Belarus in this area.

Prevention of Criminal Behavior of Prison Officers Working with Convicts Held in Lockable Premises

The Russian Federation continues its consistent policy of humanizing the conditions for incarcerated women and minors, of law observance in the execution of punishment and the prevention of unlawful violence against inmates. In this connection, optimizing the prevention of prison officers’ unlawful behavior requires new approaches to precluding personality destruction of prison employees that leads to unlawful use of physical violence against inmates. The existing legal basis does not provide any special psychological assistance for specific categories of officers, thus it is important to search for effective methods of preventing unlawful behavior of those employees who have immediate contact with convicts held in lockable premises. The intensity and tension in the work of these officers are caused by their constant contact with the most criminalized inmates, by the necessity to perform their professional tasks in the conditions of covert or open confrontation, provocative or manipulative behavior of criminals. Such conditions increase the probability of unlawful behavior of prison officers, manifested both as one-time, situational reactions and as overall behavioral strategies. Such factors made it necessary to conduct a country-wide research of personal characteristics of this category of officers with the purpose of identifying those features that provoke unlawful behavior. It involved 213 prison officers (representative method of random sampling) from 81 subjects of the Russian Federation; the authors also examined data acquired as a result of specific requests and the analysis of materials on the frequency and characteristic features of unlawful behavior of officers. The research resulted in determining personal profiles of penitentiary system’s employees. It showed that 98 of them (the first group) have an evident complex of negative characteristics (negative profile of personality). It is not recommended for them to work in lockable premises in the future. The researchers recommended 115 officers (the second group) for future work in lockable premises of penitentiary institutions (positive profile of personality). The diagnostics’ results made it possible to determine that the key specific task of psychological assistance for this category of officers is timely identification of inclination for unlawful behavior and the assessment of the effectiveness of correctional measures. Preventive work should be based on the results of screening that determines the level of aggression, depressive conditions, mental tolerance of the officer under considerable psychological and physical stress and extraordinary, extreme situations at work.

Legislative Problems of Mandatory Medical Measures (Chapter 15 of the Criminal Code of the Russian Federation)

The paper discusses the author’s draft of Chapter 15 of the Criminal code of the Russian Federation with a brief comment prepared by Professor G.V. Nazarenko and published in the journal in the framework of the correspondence round table «New Criminal Code of Russia: Conceptual Framework and Theoretical Model». The new title of Chapter 15 proposed in the draft is being discussed, which, like its current title, does not indicate that the measures in question are psychiatric in content. The authors themselves distinguish two types of such measures: «mandatory» in the strict sense of the word, applied to subjects with severe mental disorders, excluding sanity or making impossible the appointment or execution of punishment, and «obligatory», applied to convicts with mental disorders within the limits of sanity. In this regard, it is proposed to name Chapter 15 «Mandatory and obligatory psychiatric measures». The paper discusses the rationale and purpose of the application of mandatory psychiatric measures. According to the authors, the criminal law should disclose the content of the «danger criterion» and define it as a real possibility (a high degree of probability) of committing new acts by this person, provided for in the articles of the Special part of the Criminal Code of the Russian Federation. Analyzing the proposed by G.V. Nazarenko definition of the purposes for the use of mandatory psychiatric measures, the authors believe that it is hardly appropriate to declare such a «change» of the mental state of a person with a mental disorder «which eliminates its social danger» as their purpose. Mandatory psychiatric measures should be aimed solely at improving the mental state of the patient, while the elimination of the danger may in some cases be the result not of an improvement, but of the deterioration of his / her condition or the influence of other unfavourable medical factors. It is concluded that, despite the divergence of scientific positions on a number of issues, the author’s draft of Chapter 15 of the Criminal Code of the Russian Federation, prepared by G.V. Nazarenko, is a significant contribution to the theoretical understanding of the current criminal law governing mandatory medical measures, and outlines generally right directions for its improvement.

An Opportunity for Correction within the Effective System of Isolation during Execution of Punishment

An Opportunity for Correction within the Effective System of Isolation during Execution of Punishment

Дифференциация и индивидуализация исполнения наказания в виде лишения свободы при изменении вида исправительного учреждения

The article deals with the issues of differentiation and individualization of the execution of punishment in the form of imprisonment when changing the type of correctional institution, problems in the legislative framework and practice of applying the procedure and grounds for changing the type of correctional institution, comparing the specified institution of the penal law with incentives and penalties. The main requirements are analyzed, which should underlie the change in the scope of restrictions and deprivations constituting the content of the sentence of imprisonment when changing the type of correctional institution and the place of serving the sentence. It is noted that the perfection of legislative consolidation of the legal mechanisms under consideration has a direct impact on the achievement of the goals of punishment. The system of places of imprisonment in Russia has historically developed in the direction of increasing the differentiation of punishment in relation to various categories of convicts, reducing the proportion of judicial discretion. These trends are reflected in both the Criminal Code of the Russian Federation and the Penal Code of the Russian Federation. The types of correctional institutions are a concrete expression of the compulsory nature of punishment in the form of imprisonment, its content, which in turn is expressed in various kinds of restrictions on the rights and freedoms of the convicted person, which in general constitute the degree of his isolation from society. Therefore, a change in the type of correctional institution must mean a change in the degree and nature of the coercive influence on the person sentenced to imprisonment, the extent of restriction of his rights and freedoms. However the issues of determining the degree of correction of convicts are of particular importance, which requires detailed and precise legislative fixation.