Penal Enforcement Research Articles

The law “on probation in the Russian Federation”: final version and directions of development of penal enforcement law

The law “on probation in the Russian Federation”: final version and directions of development of penal enforcement law

Неэффективность как имманентное свойство действующего уголовного наказания

Introduction. The criminal policy of the state should ensure the rule of law and the safety of the population. At the same time, today the criminal and penal enforcement legislation has low preventive efficiency due to serious systemic defects associated with a high degree of instability. The purpose of the study is to assess the effectiveness of existing criminal penalties and their restorative justice potential. Methods. The methodological framework for the research is a set of methods of scientific cognition, primarily sociological, dogmatic and formal-logical methods. Results. The punitive policy of the state not only fails to achieve the goal of crime prevention, but also provokes its growth. The fragmentation and disorder of criminal punishments, which do not take into account modern requirements for the procedure for applying corrective measures to convicts, call into question the very existence of criminal policy. The construct of the “ladder of punishments” as the basis of the criminal-legal sphere of the state activity should be based on rationalism and logic capable of protecting citizens and society from criminal encroachments and crime in general. Conclusions. A rational approach to punishment based on modern ideas about the law and the values protected by it, taking into account the scientifically-based arguments of criminologists, should be associated not with revenge on the criminal, masked by the terms “punishment”, “retribution”, and “restoration of social justice”, but with the restoration of the violated rights of the victim and the prevention of new crimes.

Особенности психологических защит у молодых сотрудников уголовно-исполнительной системы (на примере сотрудников следственных изоляторов)

The article describes the results of a study of the peculiarities of the manifestation of psychological defenses in young employees with less than three years of service in the penal enforcement system. The analysis of scientific literature on the problem under study is carried out, the structure of empirical research is presented. Young employees who have been serving in the UIS for less than three years have significantly higher indicators on the scale of “denial”, “reactive education”, “suppression” and lower on the scales of “regression”, “projection”, “rationalization”, “substitution”. Values on the scale of “compensation” did not show significantly significant differences. With the accumulation of experience and experience, the structure of the selected protection mechanisms changes. In the course of the study, high values of both constructive and destructive mechanisms were found in the respondents of both groups. Young employees have a pronounced expression of “suppression” and “compensation”, and employees with experience have “projection” and “rationalization”. Based on the results of an empirical study, recommendations on the general organization of some areas of psychological preventive work with young employees are presented.

The spread of a new coronavirus infection (COVID-19) in the conditions of Russian penitentiary institutions: the state and counteraction measures

The article examines the peculiarities of the spread and counteraction of the new coronavirus infection in Russian penitentiary institutions. Special attention is paid to the issues of keeping suspects, accused and convicted persons in isolation, as well as related recommendations of the Supreme Court of the Russian Federation. The results of the study of the order and conditions of isolation in Russian penitentiary institutions, together with somatic indicators of the age and health of persons held in them, give grounds for reasonable alarm about the existence of increased risks of the spread of COVID-19. However, practice shows that timely sanitary and epidemiological measures taken by the state and special restrictions of a regime nature in isolation have restrained the spread of the disease. Conclusions are drawn about the need to change some provisions of the Criminal Code of the Russian Federation, the Criminal Procedure Code of the Russian Federation and the penal enforcement legislation to ensure the possibility of urgent correction of criminal policy and law enforcement in conditions of high readiness for natural and man-made emergencies.

THE RESTRAINING ORDER. SELECTED OBSERVATIONS FROM THE AREA OF SUBSTANTIVE, PROCEDURAL, AND ENFORCEMENT LAW

The paper discusses the restraining order, an instrument which is currentlypresent in three Polish penal codes, namely, the Penal Code, theCode of Penal Procedure, and the Penal Enforcement Code. Therefore,it should be considered a widely-used instrument of criminal policy. Thegenesis of its introduction into the legal order is rather surprising, as theproposal to implement this type of measure appeared only at a fairly advancedstage of parliamentary works. The main objective of the paper isto show the current shape of the main provisions regulating the restrainingorder in the particular codes and attempt to answer the question whetherthese provisions are sufficient, thus assessing the potential of the order.

Ratio legis uchylenia art. 152 ustawy z dnia 6 czerwca 1997 r. – Kodeks karny wykonawczy Ratio Legis for Repealing Article 152 of the Act of 6 June 1997 – the Penal Enforcement Code

On 5 October 2019, Article 152 of the Act of 6 June 1997 – the Penal Enforcement Code which provided for the possibility of a conditional suspension of enforcement of the imprisonment sentence at the stage of enforcement proceedings, was repealed. The analysis of the legislative process leads to the conclusion that the repeal of the provision has no justification in the draft amendment act. The institution provided in Article 152 provided for a potential award of a very severe penalty going much further than conditional early release from the remainder of the sentence, modification of the conviction in the enforcement proceedings, leading, upon the occurrence of certain premises, to change of an unconditional custodial sentence into a custodial sentence with a conditional suspension of its enforcement. This article is an attempt to determine the purpose of the amendment, the motives behind the legislators’ decision, as well as to assess the changes. Key words: enforcement proceedings, conditional suspension of a sentence, sentence enforcement postponement, enforcement proceedings suspension, electronic tagging

CONVICTION UNDER THE CONDITIONS OF ARTICLE 65 1 AND 2 OF THE PENAL CODE AS A NEGATIVE PREREQUISITE FOR THE USE OF THE ELECTRONIC TAGGING SYSTEM INTERPRETATIVE DOUBTS

The article regards the legal prerequisites for excluding the use of the electronic tagging system, in particular the relationship between the provisions of Article 431a 1 (1) of the Penal Enforcement Code and the provisions of Article 65 1 and 2 of the Penal Code. The article draws attention to the increasing use of the electronic tagging system in Poland and the benefits resulting from this fact. The publication contains an analysis of the problem of whether a conviction for a crime from the commission of which the offender has made a regular source of income or committed a crime acting in an organized group or association aimed at committing a crime and for a crime of a terrorist nature - constitute a negative premise for the use of the electronic tagging system. The article draws attention to the practical aspect of the problem raised in connection with the divergent interpretation of the above-mentioned provisions, which leads to a situation in which, in the same factual and legal situations, common courts issue divergent rulings. The author, assessing the relationship between the provisions of the Penal Enforcement Code and the Penal Code, notes that the provisions of the Penal Code are applicable in executive proceedings only in the event that the Penal Enforcement Code contains a direct reference to them. The author finally comes to the conclusion that the conviction of the offender for crimes listed in Article 65 1 and 2 of the Penal Code does not constitute a legal obstacle to the issuance of a ruling allowing the offender to serve his sentence in the electronic tagging system. The position expressed in the work has been supported by views presented in the literature and case law.

Профессиональная компетентность сотрудников уголовно-исполнительной системы, работающих с осужденными — бывшими работниками судов и правоохранительных органов

<p style="text-align: justify;">The article is devoted to the professional competence of employees of the penal enforcement system in working with convicts-former employees of courts and law enforcement agencies. The results of a ascertaining experiment aimed at studying the level of formation of professional competence of employees of the penitentiary system in working with this category of convicts are analyzed. The authors draw attention to the fact that the organization of educational work and interpersonal interaction of employees of specialized institutions has a number of specific psychological, pedagogical and professional features. The main specificity that directly affects the professional activities of employees is the peculiarity of the special agent. The professional competence of an employee working with this category of convicts presupposes the presence of a special, active, personal and psychological component. The emphasis is on the fact that employees need to have a high level of professional competence, constantly develop themselves and improve themselves.</p>

Implementation of the Defense by a Lawyer at the Stage of Execution of the Sentence

The article deals with problematic issues in the determination by the legislator of the procedural status of a lawyer participating in criminal enforcement proceedings to consider issues arising in the process of execution of final court. An analysis of the norms of criminal procedure legislation on the powers of a lawyer and his functions to protect the rights of convicts was carried out. Attention is drawn to the imperfection of the regulatory regulation of the procedural position of a lawyer when carrying out his activities in the enforcement process to protect the rights of convicts. Differences in the legislative norms on the name of a person who protects the rights of a convicted person in a penitentiary dispute have been established, which require improvement of the current legislation. The article presents various points of view of process scientists regarding the legal status of a person providing qualified legal assistance to convicted persons in court proceedings to resolve issues of execution of a sentence. The scientific position defining the exercise of representative functions by a lawyer in executive proceedings has been criticized, since the main function of a lawyer, regardless of the type of legal proceedings, is to provide qualified legal assistance during criminal proceedings, the purpose of which is to protect violated or disputed rights, freedoms and interests of a person in need. The article reflects some positions of the Constitutional Court of the Russian Federation on the regulation of the provisions of the penal enforcement proceedings, including issues of the participation of a lawyer, which have a significant impact on the criminal process as a whole and ensuring the implementation of general legal principles of judicial proceedings, including ensuring the right to defense. The procedural norms of the legislation regulating the powers of the defense counsel in the implementation of the protection of the rights of convicts in the courts of the first, appeal and cassation instances are analyzed. Attention is drawn to the lack of legislative regulation of cases of mandatory participation and the procedure for appointing a lawyer in enforcement proceedings. The results of the study lead to the conclusion that it is necessary to endow a lawyer who protects the rights of convicts at the stage of execution of a sentence with the procedural status of a defender with legally fixed powers.

International Regulations Governing the Situation Women Sentenced to Imprisonment and Women With Young Children

The need to study international standards and the practice of their implementation is due to the existing contradiction not only of the actual state of penitentiary systems, but also of penal enforcement policy, reflected in the expected results, both in Russia and abroad. Based on the analysis of international standards and established practice, the absence of international norms that would clearly express themselves regarding the situation of a mother imprisoned with a child has been revealed, in connection with which more complex issues arise, and practice in many countries is contradictory. In addition, international provisions, for example, the UN Standard Minimum Rules, do not specify: the special needs of women, pregnant women and convicted mothers with young children as a special category of convicts; the responsibility of the state to provide special protection to the child and provide care and assistance for his well-being; the age of children living in places of deprivation of liberty, etc. Numerous problems demonstrate the need for further research of penitentiary standards and rules for the possibility of their implementation in the world practice of execution of punishment.

On the Question of Correlation of Criminal Procedure and Penal Enforcement Legislation

The article shows the intersectoral links of criminal procedure and penal enforcement legislation, combined at the theoretical level into a single block “legislation on combating crime”. The author examines the correlation of criminal procedure and penal enforcement legislation, continuing the research he started at the end of the last century on this issue. The issues of interaction between the Criminal Procedure Code of the Russian Federation and the Criminal Executive Code of the Russian Federation are insufficiently studied in legal science, despite the existence of fragmentary links between these codified laws. The factor uniting criminal procedure and penal enforcement legislation is a special criminal enforcement proceedings designed to resolve issues arising during the execution of punishments and other measures of criminal legal impact, and not the main criminal procedure proceedings (criminal proceedings). The purpose and objectives of the study. Identification of the legal nature of the activities regulated by Chapter 47 of the Criminal Procedure Code of the Russian Federation “Execution of sentence”, determination of the possibility and prospects of moving from the Criminal Procedure Code to the Criminal Executive Code the norms of this chapter as the legal basis of criminal executive proceedings carried out outside the criminal case. The methodological basis of the research is the provisions of the general theory of humanities, general theory of law and procedural legal branches. General scientific and private scientific research methods (logical, historical, analysis, synthesis, system-structural, formal-legal, comparative-legal, interpretation or legal interpretation of legal norms) were used in the preparation of the article. The results obtained and the main conclusions. The problem of the correlation of criminal procedure and penal enforcement law at the moment has actually transformed into the problem of choosing a branch of law, a specific codified law that should regulate the activities of the court to consider and resolve issues related to the execution of punishment. Having a criminal-executive nature and being additional to the main criminal proceedings, the criminal-executive proceedings did not receive an appropriate detailed legal regulation within the Criminal Procedure Code, which once again emphasized its specificity and autonomy in the criminal process. In the new legal realities, it makes practical sense to return to the discussion of the problem of determining its place in the penal enforcement legislation.

Qualification by the European Court of Human Rights of Degrading Treatments in Penitentiary Institutions

The authors examines the legal positions formulated by the European Court of Human Rights in relation to the compliance of Russian legislation and the practice of its application with the criteria of inadmissibility of cruel and humiliating treatment of convicts. Despite the termination of Russia's cooperation with European inter-state human rights bodies, the long experience of interaction with them has made it possible to identify certain shortcomings in the national penitentiary system and outline ways to eliminate them. A number of decisions of the European Court of Human Rights have been creatively interpreted in Russian legislation, and this has contributed to improving the legal status of persons sentenced to imprisonment. Based on a critical analysis of the key negative characteristics of the penal enforcement system, the authors identified the main directions of the impact of the decisions of the interstate human rights body on the formation of a new penal enforcement policy that contributes to improving the protection of the rights, freedoms and legitimate interests of citizens serving a sentence of imprisonment. To date, the relevance of this has remained, although the legal positions of the European Court of Human Rights are not and have never been sources of Russian law. The improvement of penitentiary legislation is a significant direction of the criminal policy of the state, therefore, the author's conclusions are of interest for rule-making activities.

Certain aspects of operational improvement of the procedure of searches conducted on the territory of institutions and bodies of the penal enforcement system

Certain aspects of operational improvement of the procedure of searches conducted on the territory of institutions and bodies of the penal enforcement system

Исследование штрафа-наказаниякак средства уголовно-правового воздействия

D.A. Ogorelkov prepared a monographic study of the fine - the dissertation “Punishment in the form of a fine as a means of criminal legal influence”, which he submitted for the degree of Candidate of Legal Sciences (Specialty 12.00.08 - Criminal Law and criminology; penal enforcement law) and successfully defended on September 13, 2022 at a meeting of the dissertation Council D 203.010.01, created on the basis of the Omsk Academy of the Ministry of Internal Affairs of the Russian Federation. Results. The dissertation contains a solution to a problem that is important for the development of criminal law science. The design of the dissertation meets the requirements established by the Ministry of Education and Science of the Russian Federation. The abstract fully corresponds to the dissertation. The work in question is an actual, independent, completed study containing signs of novelty and reliability and meets the requirements of section II of the Regulations on Awarding Academic Degrees. Dmitry Alekseevich Ogorelkov deserves to be awarded the required academic degree of Candidate of Legal Sciences in the specialty 12.00.08 - Criminal Law and Criminology; penal enforcement law.

The legal institute of citizenship in the norms of penal enforcement legislation providing for consideration of the personal characteristics of convicts

The legal institute of citizenship in the norms of penal enforcement legislation providing for consideration of the personal characteristics of convicts

Causes and conditions of escapes from protection in the field of activity of the security units of the penal enforcement system

Causes and conditions of escapes from protection in the field of activity of the security units of the penal enforcement system

Проблемы назначения наказания при досудебном соглашении о сотрудничестве в России и Казахстане

A.K. Salykova conducted a dissertation research on sentencing under a pre-trial cooperation agreement (cooperation agreement) under the criminal legislation of the Russian Federation and the Republic of Kazakhstan, which he submitted for the degree of Candidate of Legal Sciences (Specialty 12.00.08 - Criminal Law and criminology; penal enforcement law) and successfully defended at a meeting of the dissertation Council D 203.010.01, created on the basis of the Omsk Academy of the Ministry of Internal Affairs of the Russian Federation. Results. The dissertation contains a solution to a problem that is important for the development of criminal law science. The design of the dissertation meets the requirements established by the Ministry of Education and Science of the Russian Federation. The abstract fully corresponds to the dissertation. The work in question is an actual, independent, completed study containing signs of novelty and reliability and meets the requirements of section II of the Regulations on Awarding Academic Degrees. Aliya Kairatovna Salykova deserves to be awarded the required academic degree of Candidate of Legal Sciences in the specialty 12.00.08 - Criminal Law and Criminology; penal enforcement law.

On the question of the concept and system of functions of penal enforcement law

On the question of the concept and system of functions of penal enforcement law

Criminality of persons held in institutions of the penal enforcement system: current state and trends

Criminality of persons held in institutions of the penal enforcement system: current state and trends

Шартты түрде соттаудың ұғымы мен құқықтық табиғаты жөнінде

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.