The conducted study of the notion, contents, aims, issue of the executing criminal penalty and its features (elements) led to the following basic conclusions:
I. The list of features of the criminal penalty includes the following:
1) penalty is a legal consequence of a crime; 2) penalty is characterized by definite contents; 3) penalty possesses definite issue; 4) penalty possesses a definite form; 5) penalty is characterized by a definite order and causes of application (sentencing and executing) and servicing; 6) penalty brings definite consequences; 7) penalty is applied for definite socially positive aims: restoration of social justice, and for the correction of the convict and prevention of new crimes;
II. The Article of the Criminal Code of the Russian Federation needs to be amended by the following, “Bases for achievement of the aims of the criminal penalty is compulsion, bringing all the features of contents of sentencing, executing, servicing the penalty”;
III. The criminal penalty should be treated as:
– legal consequence of a crime, characterized by definite contents, essence, form, order and conditions of application (sentencing and executing) and servicing, causing definite consequences and bringing definite socially useful aims: restoration of social justice, correction the convicts and prevention of new crimes;
– a complex of provided by the law, inter-depended and inter-related features and elements (contents of sentencing, executing and servicing the penalty), characterizing its object, objective side, subject and the subjective side;
IV. It is necessary to eliminate the contradictions between the criminal (material) law and the criminal executive (procedural) law by introduction of all the deprivations, limitations, exchanges and additions of rights, legal interests and obligations of the convicts to the Criminal Code of the Russian Federation. Moreover, the Criminal Code of the Russian Federation should be amended by other deprivations, limitations, exchanges and additions of rights, legal interests and obligations of the convicts to all the types or to a definite type of a criminal penalty, provided by other regulative legal acts;
V. The possibility to change the penal issue of the criminal punishment as a result of arising definite circumstances, provided by the law, within the procedure of the executing and servicing the criminal penalty, should be reflected, first of all, in the material, i.e. criminal, law and then in the procedural – criminal executive law;
VI. In the Part 1 Art. 43 of the Criminal Code of the Russian Federation, it is necessary to point out, that the criminal penalty is applied to a person, found guilty in the commitment of a crime, and manifests itself in deprivation, limitation, exchange or addition of rights, obligations and legal interests of this person, provided by the Code in action;
VII. It is necessary to amend Chapter 9 of the Criminal Code of the Russian Federation by Articles 431, 432, 433, 434, including the following:
“Article 43 1 . Restoration of Criminological Justice
1. Restoration of a criminological justice as a procedure is a rendering of legal rights, obligations and interests of a physical or legal person, society, state and the world community, violated by a criminal encroachment.
2. Means of the restoration of a criminological justice are: deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict, compensation of harm, being the result of a crime, denial to physical cruelty and abasement of human dignity as a purpose of the penalty.
3. Criteria of the potency for restoration of a criminological justice are the following moral and juridical index: a) attitude of a legislator to the committed criminal act and corresponding criminal penalty; b) attitude of the court towards the crime committed and the corresponding criminal penalty; c) attitude of the organ or instituting, executing the corresponding penalty for the committed criminal act, to the order and condition of its execution; d) attitude of a victim to the committed criminal act and the corresponding criminal penalty; e) attitude of the convict to the criminal act and a criminal penalty, provided for it; f) attitude of the society to the committed criminal act and order and condition of application (sentencing and executing) the corresponding penalty; g) attitude of the world community to the committed criminal act and order and conditions of application (sentencing and executing) of the corresponding penalty.
4. Restoration of a criminological justice is evaluated according to the following degrees:
1) high, i.e. at the level of sentencing and/or executing of the criminal penalty, the social justice is restored mostly – when achieving the aim of the criminal penalty in the form of the social justice, most of the legal rights, obligations and interests of a person, legal person, state and the world community are taken into account, and the convict does not need to service the full term of the penalty, sentenced by the court;
2) middle, i.e. at the level of sentencing and/or servicing the criminal penalty, the social justice is restored not in its full amount – when achieving the aim of the criminal penalty in the form of the social justice, only some of the legal rights, obligations and interest of physical and legal persons, society, state and the world community are taken into account;
3) low, i.e. at the level of sentencing and/or executing the criminal penalty, the social justice is restored only partially – when achieving the aim of the criminal penalty in the form of the social justice, only some definite legal rights, obligations and interests or the guilty or a victim are taken into account; as a rule, the convict violates the order and rules of serving the sentence;
4) zero, i.e. social justice is almost not restored – when achieving the aim of the criminal penalty in the form of the social justice, the legal interests, rights and obligations of a physical and legal person, society, state and the world community are not taken into account; as a rule, the convict deliberately escapes from serving the sentence”.
“Article 43 2 . Correction of the Convict
1. Correction of the convict as a procedure is a formation of a moral attitude towards a human, society, labour, norms, rules and traditions of a human society within the convict, his stimulation to the law-obedient behavior.
2. Means of correction the convicts are: sentencing an adequate penalty to the convict, including the provided order of execution and servicing it (the regime), correctional education, socially useful labour, general and professional education, social impact.
3. Criteria of evaluating the corrective potency of the convict are the moral and juridical index: a) attitude of the convict to the committed crime and to the sentenced penalty; b) attitude of the convict to the order and conditions of servicing the sentence; c) attitude to the correctional impact; d) social characteristics of the convict.
4. The corrective potency of the convicts is evaluated according to the following degrees:
1) high, i.e. the convict possess positive characteristics, does not need to service the full term of the penalty, sentenced by the court;
2) middle, i.e. the convict possess positive characteristics;
3) low, i.e. the convict is characterized by the absence of a definite line in his behavior or possess an indefinite social attitudes;
4) zero, i.e. the convict possesses negative characteristics, does not tend to correction, deliberately violates the provided order of servicing the penalty”.
“Article 43 3 . Special Deterrence of Crimes
1. Special deterrence as a procedure is a definite type of penalty to the convict, which results in prevention of crimes.
2. Means of special deterrence of crimes are: restoration of social justice, correctional impact to the convict, deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict, intimidation by the fact of sentencing penalty for the committed crime, and also by the possibility of changing the type of penalty to a more grave one, unavoidability of executing the criminal punishment to the convict.
3. Criteria of the aim achievement by the special deterrence could be the following moral and juridical index: a) attitude of the convict to the sentenced penalty; b) attitude of the convict to the order and conditions of servicing the criminal penalty and his law obedience; c) attitude of the convict to the correctional impact.
4. The existence of special deterrence of crimes is defined according to the following degrees:
1) high, i.e. the aim of penalty in the form of the special deterrence of crimes is practically achieved – when the convict admits the sentenced penalty to be adequate, does not commit crimes because of the fear of the penalty, and because of his correction (re-education), inviolately follows the order and conditions of servicing the penalty, law obedient, does not need to service the full term of the penalty, sentenced by the court;
2) middle, i.e. the aim of the penalty in the form of special deterrence is partially achieved – the convict admits the sentenced penalty to be adequate, does not commit crimes because of fear of the penalty, inviolately follows the order and conditions of servicing the penalty, law obedient;
3) low, i.e. the aim of the penalty in the form of special deterrence of crimes is partially achieved – the convict does not commit crimes only because the fear of the penalty, thus the convict could violate the order and conditions of servicing the sentence and do not follow the requirement of a number of legal norms;
4) zero, i.e. the aim of the penalty in the form of special deterrence of crimes is not achieved – the convict commits new crimes even within sentencing a penalty and/or deliberately escapes from servicing the sentence”.
«Article 43 4 . General Prevention of Crimes
1. General prevention as a procedure means impact of the penalty to persons, which results in non-repeated crime.
2. Means of general prevention of crimes are: restoration of rights, on of social justice, deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict, correctional impact onto the convict, deterrence by the fact of legislative recognition of the penalty for illegal acts, sentencing of the penalty to the convict for the committed crime, inevitability of application of the criminal penalty to the convicts.
3. Criteria of the attaining the goals of the general prevention of crimes could be moral and juridical index, such as:
a) attitude of the society to the legislative recognition of penalty and to the sentencing of penalty: admission by the members of the society the court-appointed penalty to be adequate, presence of a sense of fear to the penalty within the members of the society by the recognition of the very fact of the law and the imminent penalty for the commitment of crimes, its inevitability, its gravity, etc.;
б) attitude of the society to the order and conditions of servicing the criminal penalty: admission by the members of the society the order and conditions of servicing penalty to be just;
в) attitude of the society to the correctional impact onto the convict, and educational impact of a criminal penalty: admission by the members of the society of the corrective potency of the convict, the presence of re-educative potency within some juvenile convicts; recognition, but not fear of the members of the society, of inexpediency of crime because of its punishability.
4. Existence of general prevention of crimes should be evaluated according to the following degrees:
1) high level, i.e. the aim of the penalty in the type of general prevention of crimes is practically achieved – the members of the society admit the court-appointed penalty to the convict to be just, they don’t commit crimes because of the fear for penalty, because of the recognition of the existence of the very fact of the law, thundering by the penalty for committed crimes, its inevitability, gravity, etc.;
2) middle, i.e. the aims of the penalty in the form of the general prevention of crimes is partially achieved – the members of the society admit the court-applied penalty to be just, don’t commit crimes only because of the fear for penalty;
3) low, i.e. the aim of the penalty in the type of the general prevention of crimes is partially achieved – the members of the society don’t commit crimes only because of the fear for penalty, don’t follow the requirements of a number of legal norms;
4) zero, i.e. the aim of the penalty in the form of the general prevention of crimes is not achieved – the members of the society, regardless of the appointed penalty to the convict, are intend to commit crimes”;
VIII. It is necessary to make changes and amendments to the Part 2 Art. 43 of the Criminal Code of the Russian Federation, “The penalty
should be applied in order to reestablish criminological justice, correction of the convict, its re-socialization, prevention of commitment of crimes both by the convicts and others, involved to counteraction to criminal delinquency, and in order to maintain criminological safety”;
IX. The structure of criminal penalty execution is a complex of law-provided objective and subjective features (elements), characterizing execution of measures of state compulsion as a type of a concrete form of penalty (for example, executing of compulsory working, correctional working, deprivation for freedom for a definite term, etc.);
X. The structure of executing of a criminal penalty has a definite sense: first, compulsion, possessing all the features of the structure all penalty execution, is a basis for achievement of aims of the criminal penalty; second, compulsion, possessing all the features of the structure of penalty execution, provided by the Criminal and Criminal Procedural Code of the Russian Federation, is a basis for penalty execution (as a result); third, the structure of penalty enables to limit and perfect the procedure of execution of a concrete type of a criminal penalty:
XI. The object of penalty execution should be understood as elements of legal status (state) of the convict, i.e. rights, obligations and legal interests of the convict, provided by the court for penal impact on the side of the institution or an organ, official, executing criminal penalties;
XII. The conducted analysis of the objects of the execution of the criminal penalty enables to point out a number of problems: first, rights, obligations and legal interests, applied by the court for penal impact, according to the criminal executive legislation, could be changed by an institution or an institution, executing this or that type of penalty, which is downright illegal to the Part 1 Art. 43 of the Criminal Code of the Russian Federation, according to which the penalty is a provided by the acting Code deprivation or limitation of rights or freedoms of this person; second, within the execution of the criminal penalty, the objects, defined by the court for correctional impact, could avoid this, which, definitely, diminishes the correctional potency of penalty; third, within the execution of the criminal penalty, correctional impact on the side of an institution or organ, executing penalty, could touch the objects, not applied by the court; fourth, the conducted analysis of the procedure of executing of some types of criminal penalties shows, that according to the changing conditions, some objects of the criminal penalty executing should undergo correction;
XIII. Objects of penalty execution could be classified “vertically” and “horizontally”. “Vertically”, i.e. depending the specific features of the objects of penalty execution objects, it is possible to point out: general, generic, aspective and direct objects. Horizontal classification of objects of penalty execution deals mostly with the direct object of penalty execution. Thus, it is possible to point out the basic (essential) and additional (or substantial) object of penalty execution. This classification is done according to the links between the generic and aspective object;
XIV. The objective side of criminal penalty execution should be treated as a complex of features, characterizing the outer side of criminal penalty execution. The objective side of penalty execution includes the following features: 1) punitive activity, encroaching this or that object; 2) the aroused consequences in the form of deprived, limited or added rights, obligations and legal interests of the convict; 3) causal link between the procedure of penalty execution and the consequences, such as deprivation, limitation, addition of rights, obligations or legal interests of the convict; 4) order and conditions, and place, time, means, way of penalty execution;
XV. Punitive activity is an activity of institutions and/or organs, activity by the officials, executing criminal penalties, on deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict. The punitive activity is the most important element of the objective side of penalty execution, as it unites the features of the objective side and its definite features. According to the criminal sense, the punitive activity possesses a number of social and juridical features: 1) eligibility; 2) compulsive character; 3) criminal penal safety; 4) economical efficiency;
XVI. As a result of punitive activity, necessarily the rights, obligations and legal interests of the convict are deprived, limited, changed or added, i.e. some consequences come. The arrived consequences in the form of deprived, limited, changed or added rights, obligation and legal interests of the convict could be classified into two main groups: 1) material and 2) non-material;
XVII. The causal interdependence between the procedure of penalty execution and arrived consequences in the form of deprivation, limitations, change and additions to the rights, obligations and legal interests of the convict is the objective attitude of interdependent interconnection between the engendering phenomenon, i.e. a cause as a process of penalty execution and the produced phenomenon, i.e. the cause in the form of the arrived deprivation, limitation, change and addition of the rights, obligation and legal interests of the convict. The signification of the causal interdependence between the procedure of penalty execution and the arrived consequences, such as deprivations, limitations, change and additions to the rights, obligations and legal interests of the convict is of primary importance for the definition of the aims of the criminal penalty. In case of the absence of the causal interdependence, the achievement of the aims of the criminal penalty is impossible. The cause not only arise the other phenomenon, a consequence, but it also cause a real ability for it arrive;
XVIII. The order of penalty execution should be understood as a specified systematic process of penalty execution, provided by the criminal executive legislation. Conditions of penalty execution are rules of behavior by the subjects of penalty execution, regulated by the criminal executive legislation, as well as the situation, circumstances, conditions within the procedure of penalty execution. The situation of the penalty execution is a complex of circumstances, creating the possibility for the execution of a penalty. Circumstances of penalty execution are phenomena, which accompany and are connected with the penalty execution. Conditions of penalty execution is an institution or / and an organ, an official, things, casualties, etc.;
XIX. Place of penalty execution is a definite definite territory, where a penalty is executed. Time of penalty execution as a feature of the structure of penalty execution is a definite period of time, within which a penalty is executed. Means of penalty execution are instruments and things by means of which a penalty is executed. The application of these or that means by an institution or/and an organ sufficiently influences the level of correctional impact. The way of penalty execution is a procedure or a method, which are applied by an institution or organ, official to execute a penalty. The way of penalty execution could influence the correctional impact onto the convict;
XX. The subject of penalty execution is institutions and/or organs, officials, provided by the acting legislation and are certified to execute criminal penalties;
XXI. The number of regulations of the Art. 16 of the Criminal Executive Code of the Russian Federation should be specified. Thus, it is advisable to make amendments to Parts 3, 4, 5, Part. 7.1, 12 Art. 16 of the Criminal Executive Code;
XXII. Institutions, executing criminal penalties, possess the following features: 1) they belong to the state organs; 2) are meant specially for penalty execution; 3) are empowered by the corresponding rights, obligations and legal interests, provided by the acting legislation; 4) are independent structural subdivisions within the sphere of state governing; 5) are not empowered by legal foundations for relief from penalty;
XXIII. Organs, executing penalty, possess the following features: 1) as a rule, are not state organs; 2) are not meant specially for penalty execution,
i. e. penalty execution is not their basic, but an additional function; 3) are empowered by corresponding rights, obligations and legal interests, provided by the existing legislation; 4) as a rule, are not independent structural subdivisions among the sphere of the state governing; 5) do not possess foundations for relief from penalty, provided by the existing legislation;
XXIV. It is necessary to strictly legislatively regulate rights, obligations and legal interests of the subjects of penalty execution. Thus, it is necessary to amend a number of new articles to the Criminal Executive Code (Art. 311, 611, 6P, 691, 741, 1431, 1432, 1491, 1571, and to amend corresponding changes and additions to definite norms of the Criminal Executive Code of the Russian Federation (3 Art. 25, Part 1 Art. 28, Part 3 Art. 33, Part 2 Art. 34, Part 3 Art. 39, Part 1 Art. 43, Part 1 Art. 54, Art. 60.9, Part Art. 60.11);
XXV. General rules, obligations and legal interests, characteristic to all the subjects of penalty execution, include: 1) to follow the order and conditions of penalty execution, provided by the existing Code; 2) make personal account of all persons convicted; 3) to explain the order and conditions of penalty servicing; 4) to control the conduct of the convicts, according to the order, provided by the legislation of the Russian Federation; 5) to organize and maintain correctional, re-socializing impact to the convict; 6) to organize and maintain the preventive impact to the convict, including taking measures of prevention of violation of the applied order of servicing the sentence, prevention of crimes and other deviations from the side of the convicts; 7) to hold initial measures in detection of convicts; 8) to compile and transfer to the corresponding service materials on the convicts, whose location is unknown; 9) to compile and transfer to the court the materials on the convicts, released from penalty or deliberately avoiding penalty; 10) to contribute in every way to the achievement of the aims of penalty;
XXVI. The subjects of penalty execution, depending to its specific features, could be classified to general and specific. General subjects execute penalties to any convict, special ones do only to the convicts, possessing specific features;
XXVII. Subjective sides of penalty execution are characteristics of an inner state of the execution of the criminal penalty, i.e. penal attitude of an institution or/and organ, official, executing criminal penalty, to the execution, servicing, the consequences of execution, and the motive and aim of penalty execution;
XXVIII. Penal attitude of an institution or/and organ, official, executing a penalty is a definite administrative managerial relations of an institution or/and organ and psychological attitude of an official, executing criminal penalties, to its execution, servicing, to the consequences of execution, servicing the penalty;
XXIX. Administrative managerial relations of an institution or/and organ, executing criminal penalties, to the execution, servicing the penalty, and to the consequences of execution, servicing the penalty, include two elements: a) organizational: an institution (or/and organ) organizes execution, servicing the penalty, prognoses the possibility or inevitability of the arising of the consequences of executing, servicing the penalty; b) volun-tative: an institution (or/and organ) tends to execute penalty and arising of consequences of execution, servicing the penalty, or does not intend but admitted the executing and servicing the penalty, or does not intend, because without excuse thought that the penalty would not be executed and consequences would not come;
XXX. Psychological attitude of an official, executing criminal penalty, to the execution, servicing the penalty, and to the consequences of the execution, servicing the penalty, include two elements: 1) intellectual. the person realized the penal character of his acts and predicted the possibility or inevitability of definite consequences as a result, or the person realized the penal character of his acts, but predicted some consequences as a result; 2) voluntative: desire or not desire, but deliberate admission of the execution, servicing the penalty and arising of definite consequences or arrogant estimation, that the penalty would not be executed and consequences would not come;
XXXI. The motive of penalty execution could be the obligation to execute and obligatory character of the sentence (definition, approval of the court), the corresponding court order with the copy of the verdict (definition, decision), and the order of procedure. The obligation to execute the sentence (definition, decision) is a complex of absolute and entrusted working and acts in order to execute the sentence. Obligatory character of the sentence (definition, decision) of the court means an absoluteness of working and acts in order to execute a sentence (definition, decision) of the court to be executed;
XXXII. The aim of the penalty execution is a practical result, which is to be achieved by an institution or/and organ, official, executing a criminal penalty or by executing a penalty. Ignoring or denying the possibility of achievement of the aim of a criminal penalty in the form of restoration of a social justice at the stage of executing or servicing a criminal penalty is the first step to the admission of unjust procedure of criminal penalty execution, illegal to the regulation and the essence of the law.