Issues of the implementation of the principles of justice and humanism in the sentencing of persons with disabilities.

Palii Viktoriya Vladimirovna ORCID: 0009-0005-8467-2377 PhD in Law Associate Professor of the Department of Criminal Law of the Kutafin Moscow State Law University (MSAL) 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 paliyka_82@mail.ru

Ragulina Anastasiya Vyacheslavovna ORCID: 0009-0004-8318-7516 PhD in Law Associate Professor of the Department of Criminal Law of the Kutafin Moscow State Law University (MSAL) 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 anragulina@inbox.ru

The basis of modern criminal policy is the principle of individualization of punishment. This principle is not legally fixed, but its significance is great, since the principles of justice and humanism are reflected in it. That is why the law enforcement officer should strive to individualize the punishment as much as possible, but he does not always succeed for one reason or another, including when sentencing persons with disabilities.

According to the normative definition, a disabled person is a person who has a health disorder with a persistent disorder of bodily functions caused by diseases, the consequences of injuries or defects, leading to a restriction of vital activity and causing the need for his social protection (Federal Law No. 181–FZ of November 24, 1995 "On Social protection of disabled people in the Russian Federation). It is precisely due to the fact that such persons have more or less limited vital activity, some types of criminal punishment cannot be applied to them. However, as the analysis of the Russian criminal legislation has shown, the legislator has not established any more extracts from the general rules of sentencing for persons with disabilities, which is unlikely to contribute to the implementation of the principles of justice and humanism.

Currently, based on the content of the General part of the Russian Criminal Law, compulsory and correctional labor is not applied to the disabled of the first group. Forced labor is not assigned to the disabled of the first and second groups. However, these restrictions cannot be interpreted only in a positive way for the following reasons.

The existing system of criminal penalties, in our opinion, does not allow the law enforcement officer to fully implement the principles of justice and humanism in relation to persons with disabilities of the first and second groups.

Justice in criminal law can be considered in various aspects: the justice of criminalization of acts, the justice of differentiation of criminal responsibility, the justice of bringing a person to criminal responsibility, the justice of the appointment and implementation of punishment and other measures of a criminal nature^[1]. Justice within the framework of sentencing means that it must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator (Part 1 of Article 6 of the Criminal Code of the Russian Federation).

The nature of the public danger is taken into account by the legislator when constructing the sanction of the criminal law norm. Thus, it differentiates criminal liability.

When forming a sanction, the legislator cannot take into account the characteristics of a particular person. As A.S. Gorelik notes, it is the act that should be the basis of criminal sanctions, the criminal is responsible for what he has done, and not for what he is^[2]. Personal data will act as a criterion for individualization of punishment within the already specified framework of the sanction of the article of the Special Part of the Criminal Code of the Russian Federation based on objective and subjective signs of the crime committed, that is, the degree of its public danger. However, it should be noted that the court, when imposing punishment, must also take into account the social danger of the person who committed the crime, which is reflected in the circumstances characterizing the identity of the perpetrator. As the Constitutional Court of the Russian Federation pointed out in its Resolution No. 3-P of March 19, 2003, the legislative establishment of responsibility and punishment without taking into account the identity of the perpetrator and other circumstances that have an objective and reasonable justification and contribute to an adequate legal assessment of the public danger of both the criminal act itself and the person who committed it, and the application of liability measures without taking into account the circumstances characterizing the identity of the culprit would contradict the constitutional prohibition of discrimination and the principles of justice and humanism expressed in the Constitution of the Russian Federation.

For the purposes of this study, we can distinguish "two justice": "fixed (accounted) justice" (sanctions of articles of the Special Part of the Criminal Code of the Russian Federation) and the required justice (Article 60 of the Criminal Code of the Russian Federation). At the same time, the first depends on the legislator, the second on the court. With the "required justice", the court will necessarily take into account the defendant's state of health as a mitigating circumstance or as a characteristic of the individual.

As for the fixed "justice", it should be noted here that the legislator, at first glance, takes into account disability, setting restrictions depending on its group, when fixing certain types of punishment in the General Part of the Criminal Code of the Russian Federation. However, it seems that, when forming the sanctions of the norms of the Special Part, the legislator does not pay attention to the restrictions established in the General Part of the Criminal Code, as a result of which situations arise in which it is possible to talk about discrimination against disabled people. So, for a disabled person of the first group, based on the sanction of Part 1 of Article 115 of the Criminal Code of the Russian Federation, only two alternative types of punishment (fine or arrest) are applicable, other persons can be assigned one of four types of punishments (fine, compulsory labor, correctional labor, arrest). Despite the "ladder of punishments" enshrined in the law, it is not always possible to unambiguously determine which type of punishment is more severe in each particular case. Thus, a fine of 300 thousand rubles for the overwhelming number of convicts has a greater degree of punitive impact than mandatory work. The situation is similar when comparing fines and correctional labor, since the amount of the fine often exceeds the amount of deductions from wages when assigning correctional labor. In addition, correctional labor can be imposed conditionally, but there is no fine, which, as S.V. Tasakov notes, is illogical and morally unreasonable^[3].

Meanwhile, Article 3.1 of Federal Law No. 181-FZ of 24.11.1995 "On Social Protection of disabled persons in the Russian Federation" establishes the principle of inadmissibility of discrimination on the basis of disability. Discrimination on the basis of disability means any distinction, exclusion or restriction on the basis of disability, the purpose or result of which is to diminish or deny the recognition, realization or exercise on an equal basis with others of all human and civil rights and freedoms guaranteed in our country in the political, economic, social, cultural, civil or any other field. But the impossibility of assigning certain types of punishment to the disabled of the first and second groups cannot be considered a manifestation of discrimination. This restriction is a manifestation of the principle of humanism. On the other hand, giving the court the opportunity to choose from a wider range of types of punishments cannot be explained by the desire of the legislator to aggravate the responsibility of the guilty, since it is dictated, first of all, by the desire to provide wider opportunities for an individual approach when choosing the means of implementing the goals of punishment formulated in Part 2 of Article 43 of the Criminal Code of the Russian Federation.

Thus, on the one hand, restrictions on the list of punishments for persons with disabilities of the first and second groups are a manifestation of the state's concern for such persons, and on the other hand, they give the court the opportunity to impose affordable (sometimes more severe) punishments by type. Such a situation is possible when the court appoints punishment for the commission of a crime, responsibility for which is provided for in Part 1 of Article 119 of the Criminal Code of the Russian Federation, to disabled persons of the first group who do not have a place of permanent residence on the territory of the Russian Federation. Of all the alternative types of punishments fixed in the sanction by the legislator (compulsory labor, restriction of freedom, forced labor, arrest, imprisonment), the court will have to appoint the most severe type – imprisonment. However, according to the criminal law, a sentence of imprisonment may be imposed on a convicted person who has committed a minor crime for the first time only if there are aggravating circumstances, or only if the relevant article of the Special Part of the Criminal Code provides for deprivation of liberty as the only type of punishment (Part 1 of Article 56 of the Criminal Code of the Russian Federation). Therefore, in the absence of such circumstances, the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, according to which a disabled person is convicted, is not applicable at all. Arrest is a "deferred" type of punishment due to the lack of necessary conditions for its execution. Thus, the legislator put the law enforcement officer in a hopeless position.

The Supreme Court of the Russian Federation gives the following explanations on this issue: in the event that a convicted person, by virtue of the provisions established by law, cannot be assigned any of the types of punishments provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation (for example, compulsory labor — by virtue of Part 4 of Article 49 of the Criminal Code, correctional labor — by virtue of Part 5, Article 50 of the Criminal Code of the Russian Federation), he should be given any milder punishment than provided for by the sanction of the relevant article. A reference to Article 64 of the Criminal Code of the Russian Federation is not required in this case (paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 58 dated 22.12.2015 "On the practice of assigning criminal punishment by the courts of the Russian Federation").

The principle of humanism is primarily addressed to law enforcement agencies (Article 7, Part 4 of Article 49, Part 5 of Article 50, Part 7 of Article 53.1 of the Criminal Code of the Russian Federation), which cannot always implement it, since there are no effective mechanisms at the legislative level to ensure its implementation in relation to persons with disabilities.

It is necessary to expand the list of criminal penalties that can be imposed on persons with disabilities of groups I and II. When discussing the possibility of applying to persons with disabilities of groups I and II of punishments related to the involvement of convicts in labor, it is worth referring to the relevant legislation. Labor legislation proceeds from the fact that persons with disabilities are equal in labor rights with other citizens, but it establishes certain guarantees for such persons. Thus, in Article 92 of the Labor Code of the Russian Federation for disabled people of groups I and II, a reduced working time of no more than 35 hours per week is established with full pay. The involvement of disabled persons in overtime work, work on weekends and at night is allowed only with their consent and provided that such work is not prohibited to them for health reasons (Article 23 of Federal Law No. 181-FZ of 24.11.1995). As S.V. Tkacheva notes, at present all conditions have been created for the employment of such a weakly protected category of citizens as the disabled, and in the case of a punishment for the disabled associated with the involvement of convicts to work, they are quite capable of fulfilling this punishment ^[4]. We can agree with this statement, but there remains the question of creating the conditions necessary for this.

It seems that restrictions on the possibility of assigning certain types of punishments related to the involvement of convicts in labor should apply only to persons recognized as completely unable to work in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation. The legislator introduced such a restriction in 2023 in Part 7 of Article 53.1 of the Criminal Code of the Russian Federation exclusively for persons who have reached the age that entitles them to an old-age insurance pension in accordance with the legislation of the Russian Federation. Thus, the legislator has already expanded the number of stumbled citizens who can be assigned forced labor.

The content of the Russian criminal legislation does not allow us to formulate an unambiguous conclusion about whether disability is a circumstance mitigating punishment or a characteristic of the personality of the perpetrator. Judicial practice is also ambiguous on this issue.

It should be noted that the personality characteristic goes beyond the limits of the public danger of the act and the circumstances mitigating or aggravating the punishment. According to Article 60 of the Criminal Code of the Russian Federation, it acts as an independent beginning of the imposition of punishment, and the court is obliged to measure the imposed punishment with the identity of the perpetrator. In the sentence, the courts must clearly distinguish between the circumstances characterizing the person and the circumstances mitigating and aggravating the punishment. So, according to G. Zagorsky: "Mitigating and aggravating circumstances by their nature are related to the composition of the crime and characterize the subject of the crime, the objective and subjective sides. The personality of the criminal is characterized by many other features, manifestations of the individual that do not belong to the composition of the crime"^[5]. If we agree with this approach, it will become obvious that the disability of the person who committed the crime, of course, refers to the characteristics of the individual, and not to the assessment of the public danger of the act and the criminal. Thus, the public danger of the criminal's personality in the literature is understood as a certain socio-psychological state, a prerequisite for committing a crime in the future ^[6]; a certain socio-moral state of an individual, which we judge by what he has done, how he is characterized, by his... antisocial behavior... circumstances lying in the past and present ... ^[7].

Unlike circumstances mitigating punishment, disability data alone cannot indicate a reduction in the public danger of the committed act. What is common between the identity of the perpetrator and mitigating or aggravating circumstances is only that they relate to factors affecting the imposition of punishment. With the so-called "distributive justice", criminal punishment should be imposed based on the objective properties of the act and the personality of the person who committed it^[8]. Information about the presence of a disability in the guilty person should be taken into account by the court solely on the basis of the principles of justice and humanism.

Next, it is necessary to pay attention to another problem that currently exists. Part 2 of Article 103 of the Criminal Code of the Russian Federation provides that persons with disabilities of the first and second groups sentenced to imprisonment may be involved in work at their request in accordance with the legislation of the Russian Federation on labor and on social protection of disabled persons. At the same time, officials are obliged to ensure that all guarantees and restrictions provided for by labor legislation are fulfilled. But such a limitation of the scope of work duties imposed on convicted persons with disabilities leads to a mitigation of the sentence imposed on grounds not provided for by criminal law, which indicates the need to consolidate in the Criminal Code of the Russian Federation an effective differentiation of criminal punishability. According to I.A. Podroikina, the internal reserves of the system are not adapted to modern conditions, they are not enough to respond to external challenges. According to the author, "the system of criminal penalties should be investigated in conjunction with external factors, including political and ideological attitudes, touching upon issues of criminal policy, economic and political validity of the system, its moral component, to identify its adaptive capabilities"^[9].

Regarding the issues of sentencing disabled people of the first and second groups, there is some inconsistency between the norms of the Criminal Code and the Administrative Code of the Russian Federation, as well as the norms of the Criminal Code and the legislation of the Russian Federation on labor and social protection of disabled people.

Thus, in accordance with Part 3 of Article 3.13 of the Administrative Code of the Russian Federation, compulsory work, as a type of administrative punishment, is not applied to disabled people of the first and second groups. Meanwhile, compulsory works, within the framework of the Criminal Code of the Russian Federation, do not contain an indication of the impossibility of assigning them to the disabled of the second group, while the compulsory works provided for in criminal and administrative legislation are absolutely identical in their essence and content. In addition, Article 3.9 of the Administrative Code of the Russian Federation establishes that arrest does not apply to disabled persons of the first and second groups, at the same time Article 54 of the Criminal Code of the Russian Federation does not provide for such a restriction. Of course, while this type of criminal punishment is not applied in Russia, but sooner or later, it will become effective, and then this issue will require an immediate solution.

In the light of the problems discussed, attention should be paid to paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 20 dated June 25, 2019 "On some issues arising in judicial practice when considering cases of administrative offenses provided for in Chapter 12 of the Code of Administrative Offenses of the Russian Federation". By virtue of Part 3 of Article 3.8 of the Administrative Code of the Russian Federation, deprivation of a special right in the form of the right to drive a vehicle cannot be applied to a person who uses a vehicle due to disability (except in cases of committing administrative offenses provided for in parts 1 and 2 of Article 12.8, Part 7 of Article 12.9, part 3 of Article 12.10, part 5 of Article 12.15, part 3.1 of Article 12.16, Article 12.24, part 1 of Article 12.26, parts 2 and 3 of Article 12.27 of the Administrative Code of the Russian Federation). When applying this norm, it is necessary to take into account the availability of medical indications for the use of a vehicle by a disabled person, which is one of the types of rehabilitation of the specified person, compensating for the restriction of the ability to move and ensuring satisfaction of his daily needs, which must be confirmed by documents issued in accordance with the procedure established by law (Articles 7, 9, 11 of the Federal Law of November 24, 1995 No. 181-FZ "On Social Protection of Disabled People in the Russian Federation").

In our opinion, it is also advisable to fix such explanations in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.12.2008 No. 25 "On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles, as well as their unlawful seizure without the purpose of theft." Namely: "To recommend to the courts, when imposing an additional penalty in the form of deprivation of the right to drive a vehicle, if there are grounds for that and taking into account the circumstances mitigating and aggravating the punishment, to discuss the expediency of its application against a person who uses a vehicle due to disability (except in cases of crimes provided for in parts 2-6 Article 264 of the Criminal Code of the Russian Federation)".

Summing up the research, it can be concluded that the implementation of the principles of justice and humanism in sentencing persons with disabilities is hampered by the imperfection of legislation and law enforcement practice. Punishment as an element of the sanction does not always allow taking into account these principles, which, in turn, should be compensated by the law enforcement officer. We agree that punishment is an absolutely necessary and important measure, but not the only one and not the main one in the system of measures of criminal legal influence, a forced and extreme measure, very costly and not always able to solve the tasks facing it effectively enough^[10].  In our opinion, the principle of justice is ensured not only by establishing fair sanctions and rational rules for sentencing, including by fixing reasonable grounds for exemption from criminal liability and punishment. The humanistic orientation of modern criminal law is also manifested in the economical use of means of criminal legal influence, since it is humanism, when it comes to human and social security, that acts as one of the restraining mechanisms for the implementation of coercive measures. Accordingly, if it is not possible for the court, due to the restrictions prescribed in the law, to ensure the implementation of the principles of justice and humanism by imposing punishment, then the presence of a disability in the guilty person may be the basis for exemption from serving a sentence.