The evolution of the forced labor as a criminal punishment according to the Concept of the Development of the Penitentiary System of the Russian Federation for the Period up to 2030

Uzdenova Leila Muhammad-Aminovna ORCID: 0009-0002-4841-1610 Lecturer; Department of International Law; Moscow State Linguistic University 7k6 Bakinsky Komissarov str., office 143, Moscow, 119571, Russia uzdenova_l98@mail.ru

Introduction

The introduction of alternative forms of punishment poses to the court the task of choosing between two possible solutions: either imprisonment or labor, in particular forced labor. The name of this punishment eloquently indicates that the convict is forced to work not according to his choice, but where the administration of the correctional center indicates ^[1]

Among other things, forced labor is not an innovation for the Russian legal system. Even in the early years of Soviet power (1917-1922), similar social protection measures were applied. These jobs included not only forced labor, but also conditional release for the purpose of employment in the construction of chemical industry enterprises. The convicts lived in dormitories of enterprises and were under the supervision of special commandant's offices of the internal affairs bodies, which functioned until 1993 ^[12].

In modern Russia, according to Federal Law No. 420-FZ dated 07.12.2011, forced labor was returned to criminal law and actually began to be applied from 01.01.2017. Forced labor is a punishment applied instead of imprisonment for minor and moderate crimes, as well as for serious crimes committed for the first time. The content of punishment as punitive elements includes restrictions on the freedom of choice of occupation, place of work (profession), personal freedom and deduction from the salary of the convicted person.

However, not everything is so clear. There is a popular opinion that the current concept of forced labor no longer has anything to do with forced labor that existed under the Soviet Union and requires a thorough revision, especially in the democratic rule of law state of the Russian Federation, forced labor is prohibited by the Constitution of the Russian Federation (Article 37). In this regard, F.V. Grushin proposes, for the purpose of improving the existing punishment system and the effectiveness of its application, "to combine restriction of freedom, compulsory labor, correctional labor and forced labor into one punishment – correctional labor" with further justification in his article and thereby remove this "dead weight" from the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) and the Penal Enforcement Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) ^[2], at the same time, the Chairman of the Supreme Court of Russia V.M. Lebedev requires judges to use humane penalties and, in particular, drew attention to forced labor ^[6]. But the use of alternative punishments such as forced labor has its own difficulties and obstacles on the way to a wide practice of application and the goals of universal humanization of the penal system, which is why we support F.V. Grushin's opinion that for the effective operation of the penal system it is necessary to begin with unloading the Criminal Code of the Russian Federation and the Criminal Code of the Russian Federation from "the same type" measures of punishment and, if possible, combine them.

It is the controversy and ambiguity that arouses scientific interest in the research topic, thereby justifying the relevance of the study. The purpose of this study is to identify gaps in the existing legislation regarding forced labor and to make proposals to eliminate them.

Analysis of the development of forced labor and identification of some problems at the present stage

Systemic reforms, including the introduction of forced labor, have played a key role in the current regulatory context. These reforms provided for improving the conditions of detention of convicts and the possibility of their rehabilitation ^[7]. The task of humanizing the punishment system is reflected in the introduction of forced labor as an alternative to imprisonment. However, the implementation of this measure was delayed until 2017 due to the unavailability of the penal enforcement system (hereinafter referred to as the UIS) to provide the necessary places for convicts, as also evidenced by the low statistical indicators on the election of this measure of punishment by the courts^[9]. Despite the initial difficulties, there has been a gradual increase in the use of forced labor, as well as those convicts whose imprisonment has been replaced by forced labor. The number of correctional centers and their sites opened both at industrial enterprises and at correctional institutions has increased ^[11].

In 2017, the first 4 correctional centers were established, and by the beginning of 2023, their number had increased to 46. More than 20 thousand convicts were serving sentences in the form of forced labor in them, with a total capacity of more than 40 thousand people. It is planned to further increase the number of places to 80 thousand by 2024 ^[11], which indicates serious institutional changes in the structure of the penal system and the state's readiness to apply punishments not related to isolation from society.

The procedure for assigning forced labor has also changed. The introduction of alternative punishments in the form of forced labor was an important step towards achieving the goals of justice and the execution of punishments. It is necessary to consider the existing problems and prospects for the practical implementation of the new punishment measure under Article 53.1 of the Criminal Code of the Russian Federation, which allows the court to determine the possibility of replacing imprisonment with forced labor.

According to article 53.1 of the Criminal Code of the Russian Federation, forced labor is used as an alternative to imprisonment for crimes of minor or moderate severity, as well as for some serious crimes committed for the first time. In other words, the court can impose this type of punishment only by replacing imprisonment with forced labor.

However, article 60, part 1 of the Criminal Code of the Russian Federation states: "A more severe type of punishment from among those provided for a committed crime is imposed only if a less severe type of punishment cannot ensure the achievement of the goals of punishment." Resolution No. 58 of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2015 (as amended on December 18, 2018) clarifies: "If the sanction of the article, along with deprivation of liberty, provides for other types of punishments, the court's decision on the imposition of deprivation of liberty should be motivated in the sentence."

Thus, when passing a guilty verdict, the court must determine whether there are grounds for replacing imprisonment with forced labor. If such grounds exist, the court is obliged to indicate the reasoned reasons for which it believes that the convicted person can improve without actually serving his sentence in places of deprivation of liberty, applying the provisions of Article 53.1 of the Criminal Code of the Russian Federation. It is important to note that the appointment of forced labor immediately, without prior appointment of imprisonment, is unacceptable, since this contradicts current criminal legislation.

It should be noted that according to the Ninth special Census of Convicts (December 2022), the majority (66.9%) of convicts in correctional centers were replaced by imprisonment for more humane forced labor. Only slightly more than one-fourth (26.4%) were those sentenced to forced labor by court verdict, the rest of the convicts (6.7%) were assigned forced labor on other grounds.

Based on the above statistics, it can be concluded that the substitution of imprisonment for forced labor shows a positive trend. However, the proportion of convicts who were sentenced to forced labor by the court remains almost unchanged.

This fact is explained by the fact that back in Soviet times, the theory of criminal and penal enforcement law established the opinion that staying in a colony settlement is not a complete deprivation of liberty. It was believed that such punishment was not related to isolation from society, but represented a different punishment. Some researchers believed that this should be a punishment in the form of restriction of freedom, others suggested the term "referral to a correctional center", and most, especially after the introduction of forced labor punishment from January 1, 2017, insisted that it should be forced labor ^[4].

However, it is worth remembering that there is a significant and thorny path between theoretical conclusions and their practical implementation. This was vividly demonstrated by the discussion held in September 2023 on draft amendments to the Criminal Code of the Russian Federation and the Criminal Code of the Russian Federation providing for the liquidation of settlement colonies.

In September 2023, the Ministry of Justice of the Russian Federation prepared and put up for public discussion a draft Federal Law "On Amendments to the Criminal Code of the Russian Federation and Article 397 of the Code of Criminal Procedure of the Russian Federation." In this draft, it is proposed to amend Article 53.1 of the Criminal Code of the Russian Federation as follows: a) to exclude from part one the words "as an alternative to imprisonment in cases provided for by the relevant articles of the Special Part of this Code"; b) to invalidate part two.

We consider it advisable to support the mentioned amendments to Part 1 and the recognition of the invalidated part 2 of Article 53.1 of the Criminal Code of the Russian Federation. We also consider it necessary to include punishment in the form of forced labor in the sanctions of a number of articles of the Special part of the Criminal Code of the Russian Federation. This list could be expanded to include penalties for serious crimes. However, the exclusion of deprivation of liberty from these sanctions seems unnecessary, since it limits judicial discretion, which will negatively affect both the judicial community and law enforcement agencies.

In addition, the Government of the Russian Federation submitted for discussion a draft law "On Amendments to the Penal Enforcement Code of the Russian Federation and Article 30 of the Federal Law "On Institutions and Bodies of the Penal Enforcement System of the Russian Federation", providing for the liquidation of colonies-settlements from January 1, 2025. Such a proposal requires deeper practical study and seems rash.

In addition to the economic aspects of the liquidation of settlement colonies, an important question arises: where will the convicts who previously served their sentences in these institutions be sent? It is possible that a partial redistribution of convicts to other correctional institutions and the release of some convicts at the end of their term, parole and other grounds is planned, but this proposal requires further study. Before the bill comes into force, the courts will continue to send convicts to penal colonies, since the bill does not prohibit the imposition of this penalty ^[5].

Thus, the exclusion of colony settlements from the correctional system without additional regulation of a number of issues in criminal legislation is questionable. For example, it is necessary to determine which institutions will be sent to the disabled, the disabled, pensioners who previously served imprisonment for reckless crimes and have an increased public danger. The bill does not regulate these issues.

In this light, we consider it advisable at the first stage to limit ourselves to making changes to the Criminal Code of the Russian Federation and the Criminal Code of the Russian Federation in order to enable judicial practice to increase the statistics on the appointment of forced labor. This will lead to an increase in the number of convicts in correctional centers and a decrease in their number in colony settlements. This approach will simplify the reform of colony settlements in the second stage.

It is necessary to emphasize the ambiguity and uncertainty of the consequences of the introduction of a new punishment for Russia in the form of forced labor. On the one hand, according to the Federal Penitentiary Service of Russia, forced labor demonstrates significant economic efficiency. The work of those sentenced to forced labor is highly popular among employers; according to data for 2022, 99% of such convicts were engaged in labor activity, which partially helps to solve personnel problems in the country.

However, there are also opposite aspects. One of the serious risks is the potential deterioration of the criminal situation in the regions where correctional centers for those sentenced to forced labor are located. This factor raises reasonable concerns and requires a more thorough analysis and the development of additional measures to prevent such negative consequences ^[11].

Thus, despite the economic benefits and high demand for prisoner labor, possible risks to public safety must be taken into account. Approaching the issue comprehensively, it is necessary to develop strategies that will simultaneously improve the economic effect and minimize criminal risks.

In his report, the Commissioner for Human Rights in the Moscow Region highlights the concerns of local residents related to the rights of convicts to leave the correctional center. This situation raises concerns about the possibility of committing offenses. One of the shocking cases that attracted the attention of the federal media occurred in early December 2021 in the city of Chekhov. The convict, who is in the correctional center and has many convictions for serious crimes, by the name of G., left the territory of the center, came to Moscow and committed abuse of the girl ^[3].

Given the already known facts of illegal actions committed by this category of convicts, there is a need to review existing legislation. In particular, it is proposed to initiate changes prohibiting the use of forced labor against persons who have committed crimes with the recurrence of intentional crimes ^[8]. It is also necessary to review the possibilities provided for in Article 80 of the Criminal Code of the Russian Federation regarding the replacement of the remaining part of the punishment with a more lenient one for persons convicted of particularly serious crimes, recidivism of intentional crimes, as well as for offenses against minors in the field of sexual integrity and sexual freedom of the individual.

Thus, the proposed legislative changes are aimed at increasing the level of security and minimizing the risks associated with finding convicted of serious crimes outside correctional institutions.

Conclusion

Forced labor, as an innovative measure of punishment, has a significant and, to some extent, comprehensive impact on various aspects of public life. Clear goals and directions have been formed for the development of not only the institution of "forced labor", but also the general criminal and penal enforcement policy of the state at the current stage. However, despite clear theoretical guidelines, the implementation of these provisions in practice faces certain difficulties.

Based on the analysis of the article, a number of original and carefully reasoned conclusions can be drawn, adapted to the normative context and modern socio-legal realities.

Firstly, the introduction of forced labor as an alternative punishment measure offers an important paradigm for the humanization of the Russian penal system. This measure avoids imprisonment for minor and moderate crimes, as well as some serious crimes, which contributes to improving the conditions of detention and rehabilitation of convicts. Forced labor, which was returned to legislation on the basis of Federal Law No. 420-FZ dated 07.12.2011, and has been actively applied since 01.01.2017, offers a constructive alternative, but the introduction was initially accompanied by serious infrastructural and organizational difficulties.

Secondly, statistical data show a positive trend in the growth of the number of correctional centers and an increase in the use of forced labor. So, by the beginning of 2023, the number of such centers amounted to 46, serving more than 20 thousand convicts. The obvious institutional changes in the structure of the criminal justice system indicate the readiness of the state system to implement punishments not related to isolation from society, which has a positive effect on the overall criminal policy.

At the same time, an analysis of law enforcement practice has revealed several problems and contradictions in working with forced labor that require attention. The existing legal order, according to Article 60 of the Criminal Code of the Russian Federation, provides for the need to first impose imprisonment, and then replace it with forced labor, which reduces the effectiveness and flexibility of judicial discretion. In this regard, it seems advisable to support the proposed legislative changes aimed at simplifying the procedure for assigning forced labor without first making a decision on deprivation of liberty.

In addition, the social and public reaction to the use of forced labor requires additional consideration. Although the economic efficiency and demand for the work of convicts are obvious, there is a risk of deterioration of the criminal situation in the regions where correctional centers are located. Specific cases, such as the incident in the city of Chekhov in December 2021, highlight the need to review legislation to limit or exclude forced labor for repeat offenders and those convicted of serious crimes.

Thus, the reform of legislation and law enforcement practice in terms of forced labor should be aimed not only at humanization and economic efficiency, but also at strengthening public safety. This requires a comprehensive approach, including the revision of legislation, professional development of correctional officers and the development of additional measures for monitoring and control of convicts.