Foreign experience of legislative regulation of the terms of serving sentences in form of corrective labor instead of isolation as a source of modernization of Russian legislation in this regard

Mkrtchian Sona PhD in Law Senior Educator, the department of Criminal Law, Volgograd State University 400062, Russia, Volgogradskaya oblast', g. Volgograd, pr. Universitetskii, 100 s.mkrtchian1992@gmail.com Other publications by this author

In the scientific literature in recent years, repeatedly expressed their opinions about the low punitive ^[6] and preventive capacities of the correctional work ^[15] as a form of punishment under the Criminal code of the Russian Federation, their inability to be a viable alternative to imprisonment and futility as a kind of criminal law measures that duplicate content penalty ^{[1; 6; 7]}, and, in consequence, the deprivation of correctional work of the status of an independent form of criminal punishment ^[1]. Such conclusions, however, seem overly categorical and hasty, especially in conditions when the Russian state is taking large-scale measures to improve criminal and penal policy in such areas as reducing the number of persons sentenced to imprisonment, including those held in correctional institutions, humanizing the conditions for the execution and serving of criminal sentences, expanding the use of criminal penalties that reduce the impact on the individual of criminogenic factors and at the same time contribute to the subsequent re-socialization of prisoners. The priority of these tasks in the process of modernization of the criminal Executive system of the Russian Federation is indicated by the content of the Concept of development of the criminal Executive system of the Russian Federation until 2020, one of the goals of which, among others, is called "improving the efficiency of institutions and bodies that execute sentences to the level of European standards for the treatment of prisoners and the needs of social development" ^[10]. In this regard, the study of foreign experience of legislative regulation of the order of execution and serving of correctional (public, compulsory, etc.) work as a type of criminal punishment that is not associated with isolation from society is of particular importance.

It should be remembered that most of the foreign criminal law acts do not contain any mention of community service (in the sense that is inherent in the text of article 50 of the criminal code) or other kinds of public works as an independent criminal penalties (Austria, people's Republic of China, Federal Republic of Germany, Switzerland, Sweden, South Korea, Japan), or at least and include “corrective”, “forced”, “public”, “public”, “for the benefit of society”, etc. work as self-punishment in articles or other structural elements designed to describe the system to be applied to the perpetrator of a criminal offence face punishment, but in fact reinforce the alternative measures that a court decision may be replaced by imprisonment or other deprivation of liberty punishment (France, Israel). Moreover, even in the last mentioned case, it is not a question of correctional labor, but rather of punishment, which according to the national criminal law tradition is called mandatory labor (Republic of Lithuania, Republic of Latvia, Republic of Serbia). It is obvious that the criminal laws of those States that are characterized by a certain common historical development and connection with the Soviet criminal and correctional labor legislation (the Republic of Belarus, the Republic of Bulgaria, the Republic of Kazakhstan) refer to correctional labor. Therefore, in order to ensure maximum consideration is given to foreign experience of regulation of the conditions of execution and serving of punishment in correctional work and objective assessment of the possibilities of implementing the most successful of its [regulation] technical legal and substantial techniques then it will be on the results of the analysis of international legal material on the appointment process, the enforcement and serving not only community service, but in General any penalties or criminal legal actions related to employment without isolating convicts from society .

As an introduction to the main part of the work, it seems appropriate to highlight the main elements of the research program. The purpose of this work is to establish and study the most successful techniques of legislative regulation of the conditions for the appointment, execution and serving of sentences related to the implementation of convicted persons; without isolation from society; employment as the main factor of correctional and educational impact on them, as well as clarifying the possibilities and highlighting the directions of their [techniques] implementation in the Russian criminal and penal legislation designed to regulate the execution of such a type of punishment as correctional labor on the territory of the Russian Federation. Such research in the framework of comparative legal analysis has not yet been conducted, despite the presence of many comprehensive studies of the process of execution and serving of correctional labor: either; in them do not focus on the comparison of penal systems of different countries (O. P. Shibankova, 2004; Y. I. Savelieva, 2005; E. S. Rakhmaev, 2005), or their authors were limited to the study of legal acts only in CIS, which, for the most part, contain the provisions about community service (A. N. Smirnov, 2007; V. I. Ammosov, 2017; L. N. Taraboi, 2017), or the study though was aimed at studying the spectrum of rules on execution and enforcement generally penalties associated with labour impact on prisoners, without isolating them from society, but attention was paid to other (than mentioned in this article) aspects and techniques of legal regulation of the criminal-Executive process (D. V. Chernysheva, 2010; A. M. Malikov, 2011). Methodology this research consists of formal legal and comparative legal methods, as well as logical and systematic ways of interpreting normative legal sources. The focus of this study was on social connections due to the need to , on the one hand, reducing the number of persons sentenced to penalties involving deprivation of liberty, and on the other hand, improvement of the existing system of standards ensuring the process of enforcement and serving other types of punishments, in particular, correctional work (object of study), and as the subject of study were elected to the norms of the Russian criminal and criminal-Executive law, and the provisions of the criminal laws of Austria, Israel, people's Republic of China, Lithuanian Republic, Latvian Republic, Republic of Belarus, the Republic of Bulgaria, the Republic of Kazakhstan, the Republic of Serbia, Federal Republic of Germany, France, Switzerland, Sweden, South Korea, Japan as the most developed economic and legal States legislative model which (like Russian), first, experience a significant influence of the Romano-Germanic legal family, some of which, secondly, genetically related to Soviet criminal law and penal policy.in addition, and third, many of them have managed to reduce (in comparison with the same indicator in Russia) the number of persons held in correctional institutions, and are taking very successful steps to re-socialize those sentenced to various types of criminal penalties.

Special attention should be paid, in particular, to the provisions of those foreign criminal codes that provide for a detailed account of the personal characteristics of the perpetrator, who is subject to punishment related to labor service without isolation from society, in the process of assigning, executing and serving such a sentence. Thus, representatives of the scientific community of Russia have repeatedly noted the unfairness of establishing exceptions from the circle of persons who can be assigned correctional labor, depending on their gender ^{[2; 5, p.7]}. Indeed, according to part 5 of article 50 of the criminal code may not be sentenced to hard labor for not only pregnant women (which, of course, is connected with necessity of observance of state interests in the field of demography, the rights of citizens to protect their health, as well as certain provisions of the principle of humanism), but women with children under the age of three years. In this case, it is doubtful not only that the rights of men who bring up children are restricted, but also that there is no correlation between a significant reduction in criminal liability and the volume and quality of implementation of measures for material support and upbringing of the child and the desire of parents to protect the rights and legitimate interests of their children. In this sense, the position of the legislator of the Republic of Belarus should be considered much more balanced. among the categories of persons who cannot be sentenced to correctional labor, he names those who are on parental leave (part 3 of article 52 of the criminal code) ^[12]. In addition, attention deserves the position of Belarusian legislator regarding the exclusion of the number of convicts who may be sentenced to hard labor under 16 years of age and persons with disabilities not only I, but group II (part 3 of article 52 of the criminal code of the Republic of Belarus) ^[12]. In the case of the reception of these statutes will be considered, first, the relationship of the ability to fix the identity and presence of the ability to understand the nature of its constraints, and secondly, the relationship the correctional potential of this species of punishment with a medical condition face certain kinds of work.

Personal characteristics of the perpetrator are also taken into account by the legislator of France to the issue of calculating a period of work in the public interest (in accordance with paragraph 4 of article 131-3 UK is an independent form of correctional punishment, and in accordance with the provisions of article 131-8 131-9 UK and can be assigned in lieu of prison sentences) that “may be temporarily suspended for serious grounds of a medical, family, professional or social order" (article 131-22 UK) ^[14].

The criminal laws of some foreign countries contain special (additional) requirements for the personality of a convicted person, for whom the deprivation of liberty can be replaced by a punishment that involves performing work outside of a correctional institution (forced, public, etc.). For example, according to article 41 of the criminal code of the people's Republic of China, when replacing a prison sentence of no more than five years or no more than six months, as well as a short-term prison sentence with a fine that the perpetrator is unable to pay (paragraph 2), or when replacing a prison sentence of less than 6 months (paragraph 3), the court may impose community service ^[16]. An exception to this rule is situations where 1) the execution of a sentence may be difficult due to the state of health of the convicted person or for other reasons, 2) such a measure is not able to provide an appropriate level of corrective action, 3) as a result of the application of such a measure, law and order will not be ensured (paragraph 4) ^[16]. The legislator of the state of Israel went even further in an effort to take into account the characteristics of the personality of a convicted person who can be assigned correctional labor as a substitute for imprisonment. Thus, according to part (bet 1) of article 51 of the bet of the penal Law of Israel when deciding on the appointment of the convict prison at hard labor (according to article 51 of Alef, the term “corrective work” means “work outside of prison intended for public use, either in one of the state agencies or other organizations or associations determined by the Minister of internal security" that is, it is a kind of alternative to incarceration) should be taken into account a range of circumstances, including: the presence of reasonable concerns of harm to the body or life of a person, including the accused, his state of health and ability to carry out assigned jobs within the deadline, the crime, the previous criminal record of the accused, the danger of the offender according to the Law on protection of the population against the perpetrators of sexual offences, characteristics of the implementation of previous corrective works for the accused ^[3]. Obviously, this list is much more detailed than the one given in paragraph 2, paragraph 70 of the Instructions on the organization of the execution of punishments and measures of a criminal nature without isolation from society, approved by the order of the Ministry of justice of the Russian Federation ^[9].

Also of interest are the provisions of those foreign legal acts that establish additional guarantees of respect for the rights and legitimate interests of convicts in the course of their work included in the content of labor impact without serving a sentence in correctional institutions. This, as it turned out, is very relevant for the Russian reality, as evidenced by the data of some reference legal systems. In particular, according to additional information to article 50 of the criminal code of the Russian Federation (section "Questions and answers" (Financier)”), professionals ATP “consultants” repeatedly gave answers to questions from citizens regarding the guarantees of labour rights of the persons condemned to corrective works, including: on the necessity of registration of the additional agreement to the employment contract about change of the place of work of the convicted person for the serving of corrective labor at the place of work, in cases where he is the employee working at home; on the possibility of employee serving in your organization, the punishment of correctional work; on the legality of the refusal to pay to the employee, adopted in the organization only for the period of serving the sentence of correctional labor, material assistance for child birth; etc. The French criminal code offers a solution to the problem of proper consideration of the labor rights of convicts to correctional labor, according to article 131-23 of which "work in the public interest is subject to the requirements of laws and regulations relating to night work, hygiene, safety, work of women and youth"^[14]. Such a provision may well be fixed in the Russian penal enforcement legislation, but, of course, with the assumption of exceptions arising from the essence of the status of a convicted person.

The experience of those foreign countries that specify in the texts of criminal legal acts the process of replacing punishments that involve labor service without isolation from society, in case of violation of the order of serving the court-appointed work, should be recognized as positive. In particular, the procedure for executing a sentence in the form of public works in cases of failure to perform it on time or malicious evasion of serving this type of punishment, provided for in article 46 of the criminal code of the Republic of Lithuania, is of interest. Thus, according to part 6 of this article, if a person for good reasons has not served public works in full during the appointed period, the court may extend the term of public works until this person has served the appointed hours ^[11]. And if a person evades serving public works (even if the authorized body sends him a warning about the possibility of applying adverse consequences to him), at the request of the relevant authorized body, the court can replace public works with a fine or arrest ^[11]. Of interest in this case is the desire of the Lithuanian legislator to ensure, on the one hand, a progressive increase in the scope of legal restrictions of a convicted person who evades serving public works, and, on the other hand, a detailed differentiation of the behavior of convicts who actually evade serving work and who, although they do not evade performing work, still do not perform them in full. This experience may well be borrowed by the Russian legislator. First, part 4 of article 50 of the criminal code does not name restriction of liberty as an alternative to forced labor and deprivation of liberty as measures that the court can replace the sentence not served by a convicted person in case of malicious evasion from serving correctional labor, which is unlikely to comply with the rules of building a system of punishments in accordance with the provisions of article 44 of the criminal code, as well as the principle of saving measures of criminal legal repression (part 1 of article 60 of the criminal code). Second, in the direction of warning about replacement of correctional work with another punishment and making the convict of charge up to two times per month to be in criminally-Executive inspection for registration, the criminal code and the penal enforcement code do not provide for other methods of dealing with breaches of the order and conditions of serving correctional work, not associated with a malicious evasion of serving that does not meet the principles of fairness and differentiation and individualization of criminal responsibility (article 6 of the criminal code). Third, among the violations of the procedure and conditions for serving correctional labor by a convicted person, part 1 of article 46 of the criminal code of the Russian Federation does not name such a violation as performing work improperly or not in full. Meanwhile, inattentive, indifferent attitude of the convict to the works that make up the content of this sentence may, on the one hand, lead to the detriment of the organization on the basis of which the convicted person serving correctional labor, and on the other hand, indicate a lack in the mind of the perpetrator of positive changes in the process of understanding the significance of social interests, recognition of the importance of lawful behaviour and lawful employment, that is, that the punishment does not contribute to the correction of the convict. In such circumstances, of course, depending on the circumstances of the case and the identity of the convicted criminal-Executive inspection has the authority to initiate or change the type of work performed, or replacement of correctional work of others (in proportion to the admitted violation more severe) punishment.

Some authors, investigating the ways of improving the execution of punishments not connected with isolation from society, including corrective works, repeatedly emphasized that deprivation of liberty as a form of punishment, the most restrictive economic, employment and other activity of the convicted person, is not conducive to the implementation of the recovery tasks of criminal justice as victims, getting moral satisfaction from the punishment of the perpetrator, in a very limited number of cases have the opportunity to restore their financial condition affected by crime ^[6]. It seems that such arguments are also valid for describing the degree of restoration of social justice in the application of punishment in the form of correctional labor under the current legislation of Russia. The fact that the text of the criminal code and the penal enforcement code, there are no provisions similar to paragraph 5 of article 46 of the criminal code of the Republic of Lithuania or part 2 of article 42 of the criminal code of the Republic of Kazakhstan. According to the first of the mentioned norms, if a person cannot perform public works for objective reasons, the court may replace such works with a monetary contribution to the Fund of persons who have suffered from crimes (according to article 71 of the criminal code of the Republic of Lithuania, this measure refers to punitive measures that should help to achieve the goal of punishment ^[11]). In turn, the legislator of the Republic of Kazakhstan initially provides for the need to transfer all deductions from the salary of the convicted person provided for in the framework of the execution and serving of correctional labor to the compensation Fund for victims ^[13]. It seems that such rules have to be enshrined in the criminal code or the penal enforcement code, with respect to order of execution and serving of punishment in correctional work, as in the Commission of the crimes for which according to the articles of the Special part of the criminal code of the Russian Federation can be appointed corrective works, harm is caused in most cases not only state interests but also the interests of individuals and organizations.

Finally, the norms of foreign criminal laws that provide for special rules for searching and selecting places where convicts serve the appropriate types of sentences should be recognized as successful examples of regulating the procedure for the execution of sentences related to labor influence on convicts outside of correctional institutions. As noted in the scientific literature, one of the problems of execution of punishment in the form of correctional works in the Russian Federation recognized the difficulty of the activities of the local authorities to identify specific vacancies (indicating the specific type of work) available in the enterprise or institution where the convict must actually serve the sentence (to avoid denial of employment of the convict because of lack of jobs). At the same time, the main reason for this [difficulty] is the imposition (according to part 1 of article 50 of the criminal code and part 1 of article 39 of the criminal code of the Russian Federation) on these bodies of the obligation to resolve these state issues without appropriate funding ^[8]. The French legislator resolves this problem in a very original way. So, according to article 131-24 UK France responsibility for all damage or part of it, caused the prisoners to another person and follows directly from the sentence ordering the execution of the work in the public interest, rests with the state ^[14], that is, organizations and institutions on the basis of which the convict is serving the appropriate punishment, have certain guarantees of an economic nature, in case their interests are violated as a result of improper fulfillment convicted of their duties or damage to, property interests of such organizations. It is not surprising, in this regard, that France has a special legal regime for performing work in the public interest, in which private legal entities voluntarily participate in the execution of this type of punishment as intermediaries. «<… > legal entities of private law, - notes I. T. Idrissov, - can apply for inclusion in the register of legal entities that interact with the court in order to perform works in the interests of society » ^{[4, p.1510-1511]}. It is not superfluous, I think, to solve the above-mentioned problem, it would also be necessary to fix in Russian legislation a norm similar to that contained in part (bet 3) of article 51 bet Of the law on criminal law of Israel, according to which if the Commissioner in the field of correctional work has not found a suitable place for the accused to be placed in correctional work, he / she informs the court and lists the actions that he / she has taken to find a suitable place, and also informs when a suitable place for the accused is released in the future the accused < …>» ^[3].

In conclusion, we note that, in addition to the above the successful, in the opinion of the author of this article, examples of foreign experience of legislative regulation of the procedure of execution and serving of sentences related to employment impact on the convicted without isolation from society, in the legislation of foreign States and international organizations there are other provisions, possibility of reception of which is to improve, in particular, the order of execution and serving of punishment in correctional work can and should be analyzed on the pages of the scientific press. In this regard, the author hopes to continue scientific research on the stated problems, as well as in the process of studying other punishments that are not related to the isolation of the convicted person from society.