Institution Of Punishment Research Articles

К вопросу о соотношении категорий «пенализация» и «наказание»

The criminal-legal policy of the state serves as the basis of an effective crime prevention system. A crucial el-ement and method of this policy is penalization, with criminal punishment being an integral tool of the latter. The study draws a line between these categories, defines their common and distinctive features. The author argues that punishment does not fully encapsulate the concept of penalization. The article analyzes not only doctrinal approaches to the concept of penalization and punishment, but also reveals their legal nature. The study also addresses the forms and types of penalization. In particular, it critiques the refusal by some authors to recognize the concept of actual penalization and the approach that reduces penalization merely to the regu-lation of the institution of criminal punishment and the sanctions of the Special Part of the Criminal Code of the Russian Federation. The findings presented in the article substantiate the central role of penalization in crimi-nal-legal policy; the close, yet non-identical, relationship between the categories of “penalization” and “punish-ment”; and the fundamental influence of penalization on the legislative regulation of punishments, as well as the necessity of forming a system of punishments based on the nature and degree of societal danger posed by the criminal act.

On the Use of Concept of "Judicial Penalty"

The essence of the application of the concept of "judicial penalty" is to release a person from criminal liability and oblige to pay a sum of money in the event a person has committed a minor or moderate crime for the first time and has compensated for damage or caused harm. A unique feature of a court penalty is that it is based solely on voluntary payment by the offender. If the offender does not comply with the court decision within the prescribed period, then such a decision is subject to cancellation, and the case is reviewed again but per standard procedure. Resorting to the institution of judicial penalty, the state thereby "gives a chance" to help offenders who have committed crimes of small or medium gravity mend their ways, suffering "minimal losses". The offender does not actually go unpunished, but at the same time does not have a criminal record, is not subject to deprivation or restriction of personal and social rights, which is inherent in the application of the institution of criminal punishment.

The Use of Punishment as a Way to Relization Political Goals in International Relations (Theoretical Study)

The problem of the application of punishment to realization political goals in international relations is considered. The author characterizes the social institution of punishment, indicates its place and role in the structure of social relations. The political and legal component of punishment is analyzed in the context of unilateral sanctions of some sovereign states against others. The main forms and content of the influence of political goals on the institution of international legal sanctionspunishments are determined. The author’s vision of such specific phenomena as “self-punishment” and “political engagement” is substantiated. An algorithm for identifying the political bias of decisions on the imposition of international legal penalties, as well as possible ways to develop an adequate response to them from the “punished” subjects (target states) is formulated. The empirical base of the study includes materials on the application of punishments by individual and collective subjects of international relations against the Russian Federation, including the geopolitical consequences of the relevant sanctions decisions.

ОСОБЛИВОСТІ ПРАВОВОГО СТАТУСУ ЗАСУДЖЕНИХ ДО ДОВІЧНОГО ПОЗБАВЛЕННЯ ВОЛІ

The article addresses to the study of the legal status peculiarities of those sentenced to life imprisonment. The authors indicate that peculiarities regarding the legal status of persons sentenced to life imprisonment differ greatly, but they believe that the most successful is the basic model of the structure, which is called traditional in science: subjective rights, legal interests and duties of convicts. The rights of those sentenced to life imprisonment are set out in Art. 107 and Art. 151 of the Criminal and Executive Code of Ukraine. While analyzing the petition of Luzhynetskyi A.O. to the Constitutional Court of Ukraine regarding the granting of the right to short-term travel outside the prisons to those sentenced to life imprisonment, the authors came to the conclusion that it is not appropriate to grant such a right. The author points out that the institution of punishment in the form of life imprisonment is undergoing significant changes, however, in the opinion of the authors, it is not appropriate to grant this category of convicts the right to short-term departures from prisons: First, those sentenced to life imprisonment enjoy all the rights provided for those sentenced to imprisonment for a certain period of time, with the exception of those restrictions prescribed for them based on the gravity of the crime committed and its criminal activity. Second, those sentenced to imprisonment do not have the right to leave the prison for a short time. This permission can be granted only by the head of the institution, under exceptional circumstances, if the convict is not inclined to continue his illegal activities and proves his correction. This category of convicts is the most dangerous in connection with the severity of the crime committed, the severity of the punishment, and the impossibility of applying a more severe punishment than that provided for by the previous criminal activity. Third, in the case of correction of a person sentenced to life imprisonment, such elements of the progressive system of execution of punishments may be applied to him, such as replacing life imprisonment with imprisonment for a certain period, and in the future, conditional early release. Key words: convict, life imprisonment, deprivation of liberty, legal status, material, household and health care support, vacation, short-term departure, penitentiary institution, change of conditions of detention, prevention.

How victims matter: Rethinking the significance of the victim in criminal theory

Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.

Evolution of the Norms of Domestic Legislation about the Criminal Legal Impact in Relation to Minors

Relevance. The article deals with the issues of the age of criminal responsibility of minors and the criminal legal impact on this category of persons at different stages of the Russian state in an inseparable unity, reveals their essential nature and prospects for development, as well as the historical conditions for the adoption of certain normative legal acts. According to the author, the main feature of the evolution of domestic legislation on criminal legal impact on minors is a gradual increase in the age of prosecution, based on taking into account the psychophysiological characteristics of this category of persons.The purpose of the study is to trace the path taken by the domestic legislator in the direction of finding the optimal balance of humanistic and repressive principles in the content and forms of criminal legal influence on minors.Objectives: to identify the genesis and evolution of criminal penalties and other measures of criminal legal impact on minors under domestic legislation; to reflect the features of criminal penalties and other measures of a criminal legal nature, taking into account the historical context of the development of the state and law.Methodology. The basis of writing the article was general scientific methods (analysis, synthesis, comparison, historical method), private scientific, including special legal (formal legal, comparative legal methods of cognition).Results. As a result of the conducted research, it was determined that in its development the institution of criminal responsibility and punishment of minors has passed a fairly long way. Having first appeared only in the XVIII century, it underwent changes over time, adapted to the existing conditions, the parameters of criminal responsibility of the rest of the population. One thing remained constant – the institution under review for a significant part of the history of criminal law occupied a special position due to the role assigned to minors as socially unprotected strata of society.Conclusion. Educational components should always be present in the content and forms of criminal legal influence on minors, the humanistic principle should noticeably prevail over the repressive one, and taking into account personal characteristics should result in a thorough individualization of criminal responsibility.

Punishment as an object of scientific research: challenges and prospects

Is devoted to the study of the legal phenomenon of punishment from the perspective of the general theory of law. It argues the need for an integrated approach to identifying the most important characteristics of punishment, considering its historical roots, etymology of the term and development trends. Relying on dialectical methodology, the author examines the prerequisites for the formation of the social institution of punishment, starting with the emergence of the first taboo and/or prohibitions. The conclusion determines the universal nature of the phenomenon of punishment, which applies to any negative sanctions implemented as measures of legal responsibility in both public and private law. The work substantiates an increased relevance of the issue of adequate understanding of legal punishment in national and international law. Three groups of interaction of punishment with other legal phenomena (means) are differentiated; they are interaction with similar phenomena that include punishment (group 1), interaction with phenomena that functionally contribute to the consolidation and implementation of punishment (group 2) and interaction with phenomena that have an auxiliary effect on consolidation and implementation of punishment (group 3). The lack of consistency (unified strategy) in law-making and law enforcement decisions in relation to the system of punishments and its dynamics have been demonstrated. The institutional features of the system of punishments in the Russian Federation, subject to a general theoretical analysis, have been determined. Approaches to the definition of the legal meaning of impunity as an independent category of jurisprudence are considered. The author gives his point of view on the issue of the forms and content of impunity and substantiates the need for its further study. In addition to domestic and foreign doctrinal and reference publications, the provisions of international legal acts, national legislation and materials of judicial practice are used as a source base. The author formulates proposals regarding the directions for further research of the category punishment in the general theory of law.

Objective Limits of the Institution of Punishment in the Context of the General Theory of Law

The paper is devoted to the examination of a general theoretical problem concerning understanding of the limits of the legal institution of punishment. The paper defines that from ancient times and the first sources of law to the present, punishments have been improved implementing their potential as means of intimidation, manipulation, elimination of harm, achieving justice and many other functions, striving for systematization. The study describes general patterns of the formation of the system of punishment. The author relies on the fact that the complex of legal norms, containing punishments as sanctions and elements of illicit acts as their hypothesys, constitute an independent intersectoral institution of punishment. The limits of the punishment show the degree of permissible interference of legal norms in the system of public relations, the limits of administrative (judicial) discretion, the limits of official interpretation of legal norms and systematization of legislation and improvement of law enforcement methods. Based on the analysis of doctrinal sources and jurisprudence, the author substantiates that the limits of the institution of punishment can be subjective (directly dependent on the will and actions of people, their associations, as well as on specific social relations associated with the subject of legal regulation) and objective (not related to subjective and implementing the true socio-legal purpose of punishment and related to the sphere of legal regulation). The author classifies and defines socially significant legal circumstances to be taken into account when establishing the objective limits of the institution of punishment. The conclusions are formulated.

The crisis of criminal punishment: the state and conditioning

Subject of research: the institution of criminal punishment, the state of which is often assessed as a crisis. The debatable nature of the issue of the crisis of criminal punishment generates diametrically opposite judgments about the presence of a crisis, or about its absence.
 Purpose of research: to determine the presence or absence of a state of crisis of criminal punishment, as well as the conditionality of the existence of discussions about the crisis of criminal punishment.
 Methods and objects of research: the dialectical method of cognition of socio-legal phenomena is used as the methodological basis of the study. General scientific methods of cognition (analysis, synthesis), private scientific (formal-logical, epistemological) were used.
 Main results of research: In conclusion, the author comes to the conclusion that close attention should be paid not to the search for alternatives to criminal punishment, but to the problems of its use (appointment and execution of punishment). The establishment of the rules of sentencing corresponding to modern realities will ensure an increase in its effectiveness, uniformity of law enforcement practice and will contribute to overcoming the so-called "punishment crisis".

Some trends in the development of the institution of punishment

Some trends in the development of the institution of punishment

PUNISHMENT BY DAMAGE TO A BODY PART IN THE RUSSIAN EMPIRE OF THE XVIII CENTURY

The purpose of the article is to study the process of gradual withering away of the institution of corporal punishment in Russia of the XVIII century, which began with the cessation of the most barbaric variety of them - punishment by injury to a part of the body. The author shows that the main factor in the abolition of the practice of applying punishments by injury to a body part in the Russian Empire of the XVIII century was the awareness by the state itself of their inefficiency. Punishments by damaging a part of the body caused harm to the state itself, which needed soldiers’ and workers’ hands. Also an important role was played by the spread of the ideas of humanism of the New Age in the XVIII century.

ШЛЯХИ ВДОСКОНАЛЕННЯ ШТРАФУ ЯК ВИДУ ПОКАРАННЯ НЕПОВНОЛІТНІХ У КРИМІНАЛЬНОМУ ПРАВІ УКРАЇНИ

The article analyzes the problematic issues of applying criminal punishment in the form of a fine to minors, compared to community and correctional works. There is an opinion that the fine as a type of punishment has a rudimentary character and therefore has lost its relevance. However, any type of punishment must be considered based on the very phenomenon of punishment and its features, the juvenile offender, who in most cases is a victim of brutal treatment, involved in begging, drunkenness or other anti-social activities, or is generally a victim of criminogenic influence before convictions. The characteristics that affect the development of the personality of minors and the state of criminal behavior of minors were considered, this is determined by the psychophysiological and socio-psychological characteristics of the minor offender. That is why the biosocial and psychophysiological characteristics of minors must be taken into account in legislation and law enforcement practice when deciding on the admissibility of a particular type of punishment for minors. Psychophysical characteristics of a minor include emotional lability, lack of critical thinking, lack of ability to timely and fully assess the situation, biosocial ones include lack of physical ability to cause resistance, etc. Today, the state shows humanism, thereby giving priority to the best interests of a minor who has come into conflict with the law. The author is convinced that such reformation of the criminal legislation would significantly improve the work with juvenile offenders and would provide the desired results, since, based on the frequency of punishment in the form of a fine to minors, its presence in the Criminal Code is only nostalgia and conservatism of the domestic legislator. Each person must be personally responsible for the committed socially dangerous influence and, if he cannot fulfill the punishment in the form of a fine, the legislator provided, although not ideal, an alternative – community and correctional works. It is manifested in this the principle of individualization of punishment. Key words: correctional works, public works, institution of juvenile punishment, court practice, fine.

How victims matter: Rethinking the significance of the victim in criminal theory

Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.

Reforming responsibility practices without skepticism

ABSTRACT Derk Pereboom and Gregg Caruso argue that humans are never morally responsible for their actions and take that thesis as a starting point for a project whose ultimate goal is the reform of responsibility practices, which include expressions of praise, blame, and the institution of legal punishment. This paper shares the skeptical concern that current responsibility practices can be suboptimal and in need of change, but argues that a non-skeptical pursuit of those changes is viable and more promising. The main lines of the argument are developed by assessing the prospects of implementing one of the changes favored within the skeptical project (namely, the reduction of punishment severity) in light of how human moral psychology works. An original vignette experiment (N = 180; participants from Facebook groups related to Brazilian universities) asked participants to recommend sentences for a fictitious criminal after considering alternatives to regular punishment that varied in their effectiveness to prevent reoffending. The results suggest that people can become less punitive even if they continue to believe in moral responsibility and free will. The paper further argues that reforming responsibility practices is more likely to occur without the endorsement of skepticism.

Cases of removal of the criminal character of the act due to drunkness

According to the Romanian criminal law, the juridical-criminal institutions and their corresponding regulations are grouped around three fundamental realities, namely: the criminal act, the perpetrator and the legal constraint. The first reality corresponds to the institution of the crime and the regulations related to the crime, the second corresponds to the institution of criminal liability, and to the third, the institution of punishment, each with the corresponding regulations. In our opinion, therefore, drunkenness can be not only a mitigating factor of punishment, but also a cause that would exclude guilt, and consequently, criminal liability. For these reasons, the phrase "shall be taken into account when applying the sentence", a phrase contained in art. 24 Criminal Code of the Republic of Moldova and art. 29 of the Romanian Penal Code - Poisoning - The act provided by the criminal law, committed by the person who, at the time of committing it, could not be aware of his actions or inactions, or could not control them, due to involuntary poisoning, is not imputable with alcohol or other psychoactive substances. The state of intoxication would thus be regulated in the criminal law of the Republic of Moldova and as a cause of removal of the criminal character, being a cause that excludes guilt.

Sanctions in the system of criminal legal means of security activities protection

The article considers and analyzes the sanctions of the articles of criminal legal norms, which provide liability for criminal offenses against security activities. Emphasis is placed on the complexity of the researched issues, as the theory of criminal sanctions has not been developed yet; there are no clear principles and general rules for creating the limits of sanctions.
 The opinion of scientists on the institution of punishment in the criminal legislation of Ukraine is analyzed there. Punishment in its content is a statutory restriction of certain rights and freedoms of the convict. Depending on the specific type of punishment provided for in the sanction of the article of the Criminal Code of Ukraine, such a restriction may apply to certain personal, property and other human and civil rights and freedoms provided by the Constitution of Ukraine.
 It is stated that the sanction is a mandatory component of the article or part of the article of the Special Part of the Criminal Code of Ukraine, which is a model of the type and scope of punishment, proportional to the public danger of a criminal offense under the current Criminal Code.
 It is noted that sanctions for criminal offenses against security activities do not always adequately reflect the nature and degree of public danger of acts, as well as the design features of the dispositions of criminal legal norms.
 It is concluded that the analysis of sanctions of articles of the Criminal Code of Ukraine, in particular, sanctions aimed at protecting security activities, shows that there are certain shortcomings that must be eliminated by the legislator.

Comparative legal analysis of the institution of administrative punishment in the current Code of Administrative Offences and in the Draft of the new Code of Administrative Offences

In connection with the completion of the development of the new Code of Administrative Offenses, it becomes obvious a change in the approach, including to the application of administrative punishment. The objects of research in this article are: the system of administrative penalties (their types and sizes) and the procedure for the application of administrative punishment in accordance with the draft new Code of Administrative Offenses. The author pays special attention to the change in the approach to the application of administrative penalties in terms of the transformation of the characteristics of administrative measures of responsibility and the legal technique of the presentation of administrative and legal norms governing the institution of administrative punishment. Also, the special subjects of the research of the topic were the categorization of administrative offenses into coarse and coarse and the formulation of a definition to the concept of a homogeneous administrative offense. The main conclusions of the study are: highlighting the relevance of the adoption of the draft new Administrative Code in terms of regulating the institution of administrative punishment, substantiating the legal fate of the adoption of such a project, otherwise determining the consequences of its non-acceptance, for example, destabilizing the legal regulation of the institution of administrative punishment and maintaining the priority of the punitive function of administrative punishment over the preventive. The novelty of the study lies in the fact that the author has formed a full-fledged commentary on the presentation of the institute of administrative punishment in the draft of the new Administrative Code: the essence of the changes, the target orientation of their introduction. This article summarizes the current problems associated with the imposition of administrative punishment, indicates the different opinions of legal scholars on this issue and provides the author's vision for making each change to the system of administrative penalties.

СУЧАСНІ ПРЕВЕНТИВНІ СТРАТЕГІЇ СПРЯМОВАНІ НА ЗАПОБІГАННЯ ЗЛОЧИННИХ ДІЙ

In recent decades, not only the institution of punishment has undergone significant transformations, turning from a means of responding to criminal offenses into a preventive mechanism. In addition to punishment, the criminal justice system uses a wide range of other coercive measures, the main objective of which is prevention. In order to distinguish between these two types of coercion, the term "preventive justice" was proposed to denote a set of state coercive mechanisms aimed at ensuring anti-criminal security. It should be noted that the problems that are considered within the framework of "preventive justice" are not new, characteristic of the 21st century. The need to prevent criminal offenses committed by "habitual" or professional offenders and the difficulties that the criminal justice system faces in solving this problem were of interest to lawyers and criminologists in the XIX and XX centuries. However, the renewal of interest in this issue is associated with the transformation of modern society into a "risk society", in which securitization, bringing to the fore the problems of risk and security is becoming increasingly widespread. Recently, more and more foreign criminologists have come to the conclusion about the limited capabilities of the official system of fighting crime. First of all, this was due to the constant increase in the cost of this struggle. This circumstance gave impetus to the study and analysis of informal social control measures. Such activities fall under the general category of "crime prevention", which covers a very wide range of possible measures. Despite the significant progress made in the last ten years, states have to face many problems that impede the full potential of crime prevention. These are mainly the result of unresolved ethical issues, implementation difficulties and technical difficulties in evaluating the effectiveness of crime prevention. Therefore, modern preventive crime prevention strategies are mainly recognized in developed countries. This situation is likely to change as a result of the widespread dissemination of information about the theory and practice of crime prevention.

Уголовное наказание: история и современность

The article discusses criminal punishment in historical and modern aspects. The term «criminal punishment» is multidimensional both in everyday and scientific understanding, functional properties are diverse. Without punishment there is no crime, and without crime there is no punishment. Hence the familiar phrase «crime-punishment». The role of criminal punishment in countering socially dangerous acts, its effectiveness causes discussion. The issues of sentencing at different times have always been and are receiving a lot of attention, both from legal scholars and from practitioners. The improvement of modern legislation in terms of criminal punishment gives reason to say that there is an understanding and research of the problems of the application of criminal punishment in modern society. Punishment expresses, on behalf of the State and society, a negative legal, social and moral assessment of the criminal act and the offender and consists in the deprivation or restriction of rights and freedoms provided for in criminal legislation.
 The purpose of this study is to study criminal punishment, its goals and practice of application, consideration of historical prerequisites. To achieve this goal, it is necessary: to investigate the institution of sentencing in the history of development, to study the current state of the institution of punishment, its goals and practice of application in modern Russia.
 The methodological basis of the work was made up of general scientific methods (historical, logical,
 system-structural, comparative legal analysis).

Эволюция норм о наказании несовершеннолетних в отечественном уголовном законодательстве

Without understanding the historical realities of the evolution of native legislation, it is impossible to analyze the directions of its further development, since the stability of legal norms is checked mainly by the conditions of their genesis. The institution of juvenile punishment in its development has gone a long and difficult way. Its formation was closely related to the state of the social, economic and political situation in the country, as well as the tasks of criminal policy.