Certain problems of qualifying evasion from serving a sentence of imprisonment (Part 2 of Article 314 of the Criminal Code of the Russian Federation)

Ligai Leonid Yur'evich Postgraduate student, Department of Criminal Law, St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 flash_go@mail.ru Other publications by this author

The Concept of the Development of the Penal enforcement system of the Russian Federation for the period up to 2030, approved by the decree of the Government of the Russian Federation, stipulates that one of the goals of the Concept is to ensure the rights of persons held in institutions of the penal enforcement system, and the humanization of conditions for serving sentences and preventive measures [Decree of the Government of the Russian Federation dated 04/29/2021 No. 1138-r (ed. from 27.05.2023) "On the Concept of the development of the penal system of the Russian Federation for the period up to 2030" (Electronic resource). – Access mode: https://www.consultant.ru/document/cons_doc_LAW_383610 /, free. – (accessed: 10/15/2023)].  

The right to leave the correctional institution (hereinafter referred to as the IU) is an effective stimulating means for the formation of law–abiding behavior of the convicted person, his re-education and further socialization process, preservation of family ties. "Maintaining constant contact with his family will contribute to the resocialization of the convict" ^{[1, p. 67]}. N.S. Kovalev also asserts the importance of the institute of departure ^[2].

At the same time, there are cases of abuse of the right granted by convicts, namely, having received permission to leave the prison, the convict does not return to the penitentiary institution within the prescribed period, and thus commits a crime under Part 2 of Article 314 of the Criminal Code of the Russian Federation.

In connection with the emerging criminal law relations, special attention should be paid to the correct qualification of the act, ensuring compliance with the principles of legality, justice and humanism, guaranteeing an objective and impartial administration of justice.

In the general structure of crime, cases of crimes related to evasion from serving a sentence are characterized by a small proportion. Thus, in 2022, 547 people were brought to criminal responsibility for committing acts qualified under various parts of Article 314 of the Criminal Code of the Russian Federation, the situation was the same in previous years: in 2021, 620 people were brought, in 2020, 608 people. The presented statistical data clearly show that persons who have committed an act provided for in part 1 of Article 314 – evasion from serving a sentence in the form of restriction of liberty are brought to criminal responsibility to a greater extent, cases of conviction under Part 2 of Article 314 of the Criminal Code of the Russian Federation are minimal, whereas under Part 3 of Article 314 of the Criminal Code of the Russian Federation are absent at all [Judicial statistics data. General information about the state of criminal record in Russia // Official website of the Judicial Department at the Supreme Court of the Russian Federation. URL: http://cdep.ru/?id=79 (accessed: 10/15/2023)] (see table No. 1 below).

Table No. 1

Summary data on the number of convicts under Article 314 of the Criminal Code of the Russian Federation in the period from 2018 to 2022.

The current state of affairs, in our opinion, is a consequence not only of the absence of events of the commission of these acts or their latency, but also of the presence of difficulties in qualifying what was done under Part 2 of Article 314 of the Criminal Code of the Russian Federation.

The appeal to scientific and law enforcement materials allows us to state the presence of certain contradictions, ambiguity in the interpretation of certain provisions of the disposition of Part 2 of Article 314 of the Criminal Code of the Russian Federation and other regulatory legal acts regulating the specifics of serving a sentence of imprisonment.

So, before the direct investigation of Part 2 of Article 314 of the Criminal Code from the position of controversial issues regarding the qualification of the deed, it is necessary to identify the characteristics of the objective side of the investigated crime, expressed in the form:

- failure to return to the IU within the prescribed period of time of a person who has been sentenced to imprisonment and who has been granted the right to leave such an institution;

 - failure to appear within the prescribed period in the body of the criminal correctional system of a person sentenced to imprisonment, who has been granted a reprieve from the execution of a sentence or serving a sentence.

The key property of the analyzed act is the fact that the initially legitimate activity of the convicted person subsequently becomes illegal in violation of the established deadline for return or appearance in institutions of the penal system.

The most frequently arising question in the qualification of the deed is the differentiation of two adjacent elements of the crime (Part 2 of Article 314 of the Criminal Code and Article 313 of the Criminal Code). Thus, when distinguishing escape from evasion from serving imprisonment, the following aspects should be taken into account.

1.                 Escape can be realized by performing active actions, whereas evasion from serving a sentence in the form of imprisonment is mainly committed through inaction.

2. Various types of institutions and premises act as a place of escape: a pre-trial detention center, a correctional colony, an investigator's office, a convoy room, an arrest house, etc. At the same time, such premises and institutions are not the place of commission of evasion from serving imprisonment.

3. The subject of a crime under Part 2 of Article 314 of the Criminal Code of the Russian Federation is a person sentenced to imprisonment and who has received permission to leave the territory of the IU, whereas under Article 313 of the Criminal Code of the Russian Federation, persons against whom a preventive measure in the form of detention has been chosen; persons detained on suspicion of committing a crime; persons who those sentenced to arrest and serving their sentences in detention houses.

A study of law enforcement practice materials has shown that when passing a sentence, courts pay special attention to the presence/absence of a permit to leave the IU, not always taking into account the grounds on which the convicted person leaves the IU. In this regard, there is a contradictory, ambiguous judicial and investigative practice in the qualification of an act in the form of evasion from serving imprisonment.  

For example, leaving the place of serving a sentence for the performance of work duties at a field facility qualifies as an escape [The verdict of the Kandalakshkinsky District Court of the Murmansk Region of November 15, 2019 in case No. 1-164/2019 // Judicial and regulatory acts of the Russian Federation. URL: https://sudact.ru/regular/doc/xk2wH9MNJIHl / (date of appeal: 10/15/2023)], [Verdict of the Yakut City Court of the Republic of Sakha (Yakutia) dated April 08, 2022 in case No. 1-644/2022 // Yakut City Court of the Republic of Sakha (Yakutia). URL: https://jakutsky--jak.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=22886458&delo_id=1540006&new=0&text_number=1 (accessed: 10/15/2023)].

At the same time, in identical circumstances, the courts classify such acts in the form of leaving the territory of the IU, on the basis of an order from the head of the IU, in order to perform labor, work functions and further non-return within the prescribed time, according to Part 2 of Article 314 of the Criminal Code of the Russian Federation [Sentence of the Justice of the Peace of the judicial precinct No. 57 of the Soviet Judicial district of Samara Samara region dated August 28 , 2019 in case no . 1-6/2019 // GAS "Justice". URL: http://57.sam.msudrf.ru/modules.php?name=sud_delo&op=cs&case_id=86333722&delo_id=1540006 (date of appeal: 10/15/2023)], [The verdict of the Justice of the Peace of the judicial district No. 68 of the Oktyabrsky Judicial District of Omsk, Omsk region, dated February 14, 2020 in case No. 1-4/2020 // GAS "Justice". URL: http://68.oms.msudrf.ru/modules.php?name=sud_delo&op=cs&case_id=14891863&delo_id=1540006 (accessed: 10/15/2023)]. The relevant judicial acts remain unchanged during the appeal hearing of the case, there are no references to the inaccuracy of the applied qualification in them.

We believe that the above examples from judicial practice, when the deed was qualified under Part 2 of Article 314 of the Criminal Code of the Russian Federation, are very controversial due to the following reasons. Focusing on the legality of travel outside the IU, based on the blank nature of the disposition of Part 2 of Article 314 of the Criminal Code of the Russian Federation, courts need to be guided by the provisions of Article 97 of the Criminal Code of the Russian Federation, which regulates the specifics of providing trips outside the IU and their varieties. This approach will allow us to take into account that the grounds for trips outside the IU are based solely on humane principles. We agree with Professor S.L. Babayan's opinion that "incentive norms and institutions are an important means of differentiating and individualizing the execution of punishment" ^{[3, p. 9]}. The institution of departures has a direct relationship with benefits and incentives for convicts, "the institution of departure of convicts is used as an incentive measure of influence" ^{[4, p. 31]}.

According to the correct statement of M.V. Kovalev, "incentive institutions are aimed at giving dynamism, flexibility to the process of educational influence" ^{[5, p. 85]}.

Speaking in support of the opinions of scientists, we note that in Article 97 of the Criminal Code of the Russian Federation, among the varieties of short-term trips, trips outside the IU for the exercise of a labor function are not specified, they are also absent in the Internal Regulations of Correctional Institutions approved by Order No. 110 of the Ministry of Justice of the Russian Federation dated July 04, 2022 [Order No. 110 of the Ministry of Justice of the Russian Federation dated July 04, 2022 (ed. dated 08/23/2023) "On approval of the Internal Regulations of pre-trial detention facilities of the penitentiary system, the Internal Regulations of correctional institutions and the Internal Regulations of correctional centers of the penitentiary system" (Electronic resource). – Access mode: https://www.consultant.ru/document/cons_doc_LAW_421232 /, free. – (accessed: 10/15/2023)]. P.V. Teplyashin previously pointed out the existence of this problem regarding the effect of the expansive approach in the interpretation of Part 2 of Article 314 of the Criminal Code of the Russian Federation ^{[6, pp. 161-162]}.

Thus, traveling outside the IU in order to perform work duties is neither an incentive nor a benefit for the convicted person. And if such an act is qualified under Article 314 of the Criminal Code of the Russian Federation, then in this case the very meaning of the institution of departures is lost, and accordingly, the specifics of the criminal law norm - Article 314 of the Criminal Code of the Russian Federation.

For our part, we believe that, in the case of obtaining permission to exit / exit outside the IU, it is mandatory to take into account the fact of documenting the right to leave, as well as the basis according to which the person leaves the IU. If the reason for departure does not comply with Article 97 of the Criminal Code and the Internal Regulations of Correctional institutions, and the person does not return on time, then such behavior must be qualified as escape (Article 313 of the Criminal Code of the Russian Federation).

The issue concerning the qualification of an act expressed in the form of leaving the territory of the IU on the basis of information that is obviously false for the convicted person, followed by non-return to such an institution, deserves attention. As an example, the following case can be cited. The convicted person is provided with a trip outside the IU on the basis of a telegram received containing information about a serious illness of a close relative, after which the convicted person does not return to the IU. In judicial practice, such a case is qualified under Part 2 of Article 314 of the Criminal Code of the Russian Federation, the court notes the importance of the very fact of granting departure, and not its illegality [Resolution of the Zelenograd District Court of Moscow No. 10-15/2013 1-5/2013 1-5/ 2013I dated May 28, 2013 // Judicial and regulatory acts of the Russian Federation. URL: https://sudact.ru/regular/doc/GJgriWWuMdJ8 / (accessed: 10/15/2023)].  

From our position, this act, on the contrary, should qualify as an escape. This position is shared by T.A. Zezyulina ^{[7, p. 153]}, M.F. Kostyuk writes about the importance of studying the legality of the provided departure ^[8]. We believe that the following factors indicate the correctness of the qualification of the deed as an escape:

1) the persons who sent the forged telegram initially knew about the presence of false information in it. This thesis is confirmed by the fact that a close relative of the convicted person was not in a condition dangerous to life and health, was not hospitalized and was not treated in a medical organization. As a result, the information contained in the telegram is inconsistent with reality;

2) the initial awareness of the persons about the unreliability of the information sent by them indicates the presence of direct intent in the actions of these persons, since the purpose of sending a fake telegram was to provide the convicted person with the opportunity to illegally obtain short-term leave due to the illness of a close relative. Thus, characterizing the intellectual and volitional moments of guilt, it is worth noting that the persons who wrote and sent the forged telegram were aware of the illegal nature of their actions, which is confirmed by the facts of their awareness of the state of health and the absence of threats to the life of a close relative, as well as the fact that the addressee of their telegram was in a place of deprivation of liberty, in which, based on the meaning of the name of the sentence he is serving ("deprivation of liberty for a certain period") is limited to the right to free movement, etc. Reasoning about the presence and content of the volitional aspect of guilt, it should be noted that the persons who sent the forged telegram wished the onset of a criminal result, which consists in giving the convict the opportunity to leave the territory of the penitentiary institution for a short time;

3) the purpose of these actions may be socially dangerous. The public danger of the prisoner's unlawful departure from the place of serving his sentence consists in the possibility of involving the convicted person in the commission of a crime (this thesis is especially relevant if the convicted person has any special skills, social ties, competencies that can contribute to the commission of a crime).

At the same time, the question of qualification under Article 313 of the Criminal Code of the Russian Federation depends on whether the convicted person knew about the forged nature of the written telegram. Since if the convicted person did not know about the presence of false information in it, then there is no subjective side in his actions, namely the intent to commit the criminal act described by us. Whereas, if the convicted person was aware of the fraudulent nature of the telegram sent, then the totality of these actions should be qualified under Part 2 of Article 313 of the Criminal Code of the Russian Federation, since the activities of these persons (the compilers and senders of the telegram, and the convicted person) pursued a single goal achieved through joint activities.

A separate issue of the qualification of the above actions is the correlation of the actions of the senders of the forged telegram with the signs of the corpus delicti provided for in Article 327 of the Criminal Code of the Russian Federation, however, the resolution of this problem is not included in the subject of our study.

Considering the alternative act stipulated in Part 2 of Article 314 of the Criminal Code of the Russian Federation, we would like to note that it was not possible to identify specific judicial acts under which convicts would be held accountable for failing to appear at the established time in the body of the criminal correctional system after the expiration of the period for granting a reprieve from the execution of a sentence or serving a sentence. This, in our opinion, is due to the fact that the legal fact of the end of the postponement does not entail automatic sending to the IU for further serving of the sentence.

According to Part 3 of Article 82 of the Criminal Code of the Russian Federation, "when a child reaches the age of fourteen, the court releases the convicted person from serving the sentence or the remaining part of the sentence with the removal of the criminal record or replaces the remaining part of the punishment with a milder type of punishment," respectively, when the child reaches a certain age, the person is either released from punishment or the remaining part of the punishment, or he is replaced with a more lenient punishment. soft. A similar situation is observed with Part 3 of Article 821 of the Criminal Code of the Russian Federation. After undergoing a course of treatment for drug addiction, medical rehabilitation, the court releases the convicted person, recognized as a drug addict, from serving his sentence or the remainder of the sentence.

We share the position of V. A. Shikhverdiyev, who points out: "... what is the need for a convicted person not to appear in the UII after the expiration of the postponement period, if up to that moment he did not violate the conditions of the postponement, including being in the UII?" ^{[9, p. 183]}.

In our opinion, the legislator intended to introduce responsibility for failure to appear in the executive system after violating the rules of deferral.

We state that at present, in case of violation of the conditions of the postponement, during the period of its validity, a person is subject to a warning, a repeated violation entails the cancellation of the postponement, and, thus, the further direction of the convicted person to serve his sentence in a place appointed in accordance with the court verdict (Part 2 of Article 82 of the Criminal Code of the Russian Federation). If a person fails to appear at the appropriate body of the penal enforcement system after the cancellation of the postponement, he is brought to criminal responsibility under Part 2 of Article 314 of the Criminal Code of the Russian Federation.

Based on the above, we propose an appropriate adjustment to Part 2 of Article 314 of the Criminal Code of the Russian Federation, as follows: "failure to appear in the appropriate body of the penal enforcement system of a person sentenced to imprisonment, who has been granted a stay of execution of a sentence or serving a sentence, after the court cancels the delay due to violation of the rules of delay."

Formulating the main conclusions of this article, it is worth noting the following. Consideration of individual problems arising in the qualification of an act under Part 2 of Article 314 of the Criminal Code of the Russian Federation showed that the greatest attention is required to study the issue of distinguishing between evasion from serving a sentence of imprisonment and escape, qualified under Article 313 of the Criminal Code of the Russian Federation. The analysis of judicial practice clearly demonstrated the obligation to take into account the grounds for trips outside the IU. This approach makes it possible to correctly qualify the act without infringing on the postulates of the principle of justice. We also adhere to the position that departure from the IU with subsequent non-return to it, provided on the basis of deliberately false documents for the convicted person, should qualify as escape (Article 313 of the Criminal Code of the Russian Federation).

In our opinion, the absence of identified cases of bringing to responsibility for the failure to appear in the body of the penal enforcement system of a person sentenced to imprisonment, who has been granted a stay of execution of a sentence or serving a sentence, after the expiration of the delay period, is due to the need to change the disposition of this criminal law norm in terms of indicating a violation of the rules of serving a delay.