Non-custodial Punishments and the Transfer of Their Execution to CIS Member States: Criminological Aspects of Preventing Repeat Offenses

Barsegyan Suren Vazgenovich Senior district police Commissioner of the Ministry of Internal Affairs of Russia 'Irkutsk'; the Ministry of Internal Affairs of Russia 'Irkutsk' 664048, Russia, Irkutsk region, Irkutsk, December Events str., 23 barsegyan.suren1986@mail.ru

Migrant crime is currently an urgent problem and attracts the attention of not only law enforcement agencies, but also society as a whole. The displeasure and concern of the citizens of the Russian Federation is due to the fact that they themselves become the object of criminal encroachment by foreign citizens, in particular citizens of the member states of the Commonwealth of Independent States (hereinafter - the CIS). Speaking about the crime of migrants, it is difficult not to agree with the opinion that migration flows are one of the main threats to national security, since each migrant has individual illegal goals, attitudes and plans ^{[2, p. 22]}. On the one hand, migrant crime is a socially dangerous phenomenon, however, according to S.F. Milyukov, migrant crime also affects the criminal situation on the territory of the Russian Federation ^{[7, p. 19]}. Some authors believe that the criminal behavior of migrants can lead to the commission of new crimes ^{[5, p. 25]}. In our opinion, migrant crime is a socially dangerous phenomenon that undermines the general state of crime in the territory of the Russian Federation.

According to the data of the Judicial Department at the Supreme Court of the Russian Federation ^[11] in 2023, 22,932 foreign citizens and stateless persons were brought to criminal responsibility, 91.6% of them are citizens from the CIS. Only 37.2% of CIS citizens were sentenced to imprisonment, which indicates that a large proportion of convicts are CIS citizens who have committed crimes on the territory of the Russian Federation and continue to be at large (55.3% have chosen non-custodial sentences). These are mainly males aged 30-49 years (46.1%) with secondary education (55.9%). At the same time, 22.1% of crimes were committed in a group, and 8.2% were completely intoxicated. It is worth noting that according to statistics, a separate category of CIS citizens, having an outstanding or outstanding criminal record, repeatedly committed crimes on the territory of the Russian Federation (9.1%). Of course, the fact that 50.7% of the total number of CIS citizens who have committed repeated crimes on the territory of the Russian Federation (having an outstanding and outstanding criminal record) cannot remain aside, these are persons who have been involved in measures unrelated to imprisonment. Thus, based on the data obtained, it is obvious that when studying the problems of preventing repeated crimes committed by persons who have served non–custodial sentences among foreign citizens and stateless persons, citizens of the CIS member states occupy a central place. This means that every second citizen of the CIS member states, after serving a non–custodial sentence, repeatedly commits crimes on the territory of the Russian Federation. At the same time, it is worth noting that we did not take into account the latency of repeated crimes of citizens of the CIS countries (it is known that the number of unreported crimes of migrants exceeds as much as 3 times ^{[5, p. 11]}). In our opinion, when imposing punishments not related to imprisonment (in particular, a fine), foreign citizens feel a certain impunity, from which their further behavior or unwillingness to improve follows. By the way, P.P. Osipov was right when he said that when imposing a fine, a criminal may have the idea that it is possible to buy off justice ^{[8, p. 92]}. This raises doubts about the effectiveness of certain types of non-custodial punishments. However, it is worth noting that in many ways the effectiveness of punishment depends on effective preventive measures. In particular, it is well known that penalties in the form of fines are executed by the Federal Bailiff Service of the Russian Federation (hereinafter referred to as the FSSP of Russia). In accordance with the Federal Law "On Enforcement Proceedings" dated October 2, 2007 No. 229-FZ, the FSSP of Russia is not authorized to monitor (or supervise) the behavior of persons against whom a court decision on the collection of a fine has already been executed, or to carry out preventive measures aimed at preventing repeat crimes. Individual prevention aimed at preventing the commission of repeated crimes by persons sentenced to a fine is not provided for both in Federal Law No. 10-FZ of February 6, 2023 "On Probation in the Russian Federation" (hereinafter – the Federal Law "On Probation") and in a number of regulatory legal documents. In our opinion, the lack of prevention (preventive accounting, administrative supervision, etc.), after serving or executing non-custodial sentences, distorts the goals of punishment in the criminal's legal consciousness, which negatively affects correctional processes. Based on the above, it is difficult not to agree with the opinion of A.V. Armashova that the commission of repeated crimes within the time limits of maintaining a criminal record indicates the desire of repeat offenders to continue criminal activity, to criminalize their personality ^{[1, p. 7]}. We consider the fears of some experts that too lenient punishments do not effectively affect the prevention of repeated crimes ^{[4, p. 3]}. Thus, on the one hand, the lack of preventive measures, and on the other hand, the "softness" of the imposed punishments, give rise to a sense of impunity, which results in an increase in the number of repeated crimes committed by persons who have served non–custodial sentences.

Currently, two opposite trends are observed in the criminal policy of the Russian Federation: the strengthening of the repressiveness of the criminal law, the criminalization of acts; and its humanization ^{[3, p. 74]}. Of course, in order to ensure the effectiveness of humanization, it is necessary to impose punishments that look more humane compared to imprisonment for a certain period. From the provisions of the decree of the Government of the Russian Federation on the need to reduce the number of convicts in penal institutions by 2024 to 400 thousand people, by 2030 from 250 thousand to 300 thousand people (On the Concept of development of the penal enforcement system of the Russian Federation for the period up to 2030: Decree of the Government of the Russian Federation dated 04/29/2021 No. 1138-r // Reference.-the legal system "ConsultantPlus" (date of application: 05.10.2024)), it can be assumed that the number of persons sentenced to non-custodial sentences will increase, as will the number of foreign citizens (in particular CIS citizens) who, committing crimes on the territory of the Russian Federation, will be at large.

We agree with the opinions of the authors, who believe that migrants arriving in the Russian Federation from foreign countries practically do not speak Russian, rarely share the cultural and ideological aspects of Russian society ^{[9, p. 33]}, which in turn leads them to commit various kinds of crimes. In addition, the main features of trends in the development of migration crime are the attempts of migrants to change the new environment in accordance with their usual way of life ^{[6, p. 26]}. In our opinion, these factors indicate that those preventive measures that are being carried out against citizens of the Russian Federation in the field of preventing repeat crimes will not have the necessary and proper impact on citizens of foreign states. At the same time, it should be taken into account that today in 28 regions of the Russian Federation, foreign citizens are prohibited from carrying out economic activities in more than 35 areas. In our opinion, these circumstances will create additional difficulties in the process of preventing the crime of migrants, since they are mainly male persons aged 30-49 years, with secondary education, who are part of ethnic associations, and, depriving them of the opportunity for easy earnings (which do not require special or professional knowledge and skills), conditions will be arbitrarily formed for they carry out illegal and criminal labor activities on the territory of the Russian Federation.

As a result of migration crimes, the number of illegal migrants increases, which creates a certain burden in the prevention of crime of foreign citizens. Speaking about the problems of preventing migration crimes, some authors point to the lack of a legal framework in this area, as well as the insufficient effectiveness of preventive measures ^{[10, p. 12]}. In addition, the formal approach to the implementation of preventive measures is also emphasized. In our opinion, crime in the migration sphere generates the commission of crimes by foreign citizens, which causes certain difficulties in the execution of non-custodial sentences and the transfer of their execution to the CIS member States.

Thus, based on the above, it is safe to say that the prevention of repeated crimes committed by foreign citizens who have served non-custodial sentences is very relevant.

In the context of the development of public relations, the centuries-old institution of punishment that exists in various CIS member states has been transformed, as a result of which the criminal legislation of modern states has been enriched by the spirit of justice and humanity. The legislation of many modern states in relation to persons who have committed crimes of small and medium gravity for the first time is designed to impose milder punishments that would contribute to achieving the goals of criminal punishment, without really isolating the convicted person from society.

Firstly, humane forms of punishment cannot solve the problem of preventing repeat crimes, and secondly, there are certain omissions in the work on preventing repeat crimes. For example, according to paragraph 2 of Part 1 of Article 21 of Federal Law No. 3-FZ dated February 7, 2011 "On the Police", the main activity of the police is the prevention and suppression of crimes and administrative offenses. According to Section VI of the order of the Ministry of Internal Affairs of the Russian Federation (hereinafter – the Ministry of Internal Affairs of Russia) dated March 29, 2019 No. 205 "On the service of a district police commissioner in a serviced administrative area and the organization of this activity" (hereinafter – the Order of the Ministry of Internal Affairs of Russia No. 205), the district police commissioner (hereinafter – the UUP) does not monitor the behavior of persons who have been sentenced to a fine, and this is in the case when the criminal record is withdrawn or repaid after one year after the execution of the sentence. According to Article 33 of the Order of the Ministry of Internal Affairs of Russia No. 205, the UUP conducts individual preventive work with persons who have committed intentional crimes against minors; who commit offenses in the family and household sphere (art. 112, 115, 116, 116.1, 117, 119 THE Criminal Code OF the Russian Federation). As you can see, a large number of convicts do not fall into the prevention zone. In this regard, the question of choosing alternative approaches that can solve this problem is relevant. In this regard, in our opinion, the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences is very promising.

Thus, on October 11, 2019, in Ashgabat, the Russian Federation, the Republics of Armenia, Belarus, Kazakhstan (with a reservation), the Kyrgyz Republic and the Republic of Uzbekistan signed the Convention of the Member States of the Commonwealth of Independent States on the Transfer of the Execution of Non-Custodial Sentences (hereinafter referred to as the Convention) (On Ratification of the Convention of the Participating States Of the Commonwealth of Independent States on the transfer of execution of non-custodial sentences: Federal Law No. 570-FZ of 12.12.2023 Reference.-the legal system "ConsultantPlus" (date of application: 05.10.2024)). Of the CIS member States, the Republics of Azerbaijan, Moldova and the Republic of Tajikistan have not signed the Convention (the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non-Custodial Sentences of March 6, 1998, was signed by all CIS members, including Georgia and Ukraine). After the signing of the Convention, the procedure for the ratification of the law began. The said Convention entered into force in the Russian Federation relatively recently – on April 10, 2024 (ratified by Federal Law No. 570-FZ of December 12, 2023), in the Republic of Kazakhstan (On ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non-Custodial Sentences: The Law of the Republic of Kazakhstan from 04/19/2021 No.32-VII SAM) – April 19, 2021, in the Republic of Belarus – July 17, 2020 (On ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences: Law of the Republic of Belarus17.07.2020 No. 44-Z), in the Republic of Kyrgyzstan – 4 December 2020 (On ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of the Execution of Non-Custodial Sentences, signed on October 11, 2019 in the city of Ashgabat: Law of the Kyrgyz Republic dated December 04, 2020 No. 593). On October 27, 2020, the Decision of the Constitutional Court of the Republic of Armenia No. ՍԴՈ-1555 established that the Convention does not contradict the main law of the country – the Constitution (On Ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences: Law of the Republic of Kazakhstan dated 04/19/2021 No.32-VII ZRK; On ratification of the Convention Member States of the Commonwealth of Independent States on the Transfer of Execution of non–custodial sentences: Law of the Republic of Belarus No. 44-Z on 17.07.2020; On Ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non-Custodial Sentences, signed on October 11, 2019 in the city of Ashgabat: Law of the Kyrgyz Republic dated 04.12.2020 No. 593).

The Convention provides for the regulation of criminal law measures in relation to non-custodial punishments. It follows from the text of the Convention that the competent authority of the country, on the basis of the petition of the convicted person, makes a request to transfer the execution of punishment to the competent authority of another country, in this regard, it is necessary to analyze the legislation of the CIS member states that signed the above Convention, since after the adoption of the Model Criminal Code (Model Criminal Code for the member States of the Commonwealth of Independent States States. Recommendation legislative act: adopted in St. Petersburg on 02/17/1996 by Resolution 7-5 at the 7th plenary meeting of the Interparliamentary Assembly of the CIS Member States // Newsletter of the Interparliamentary Assembly of the CIS Member States (annex). 1996. No. 10) and the Penal Enforcement Codes (Penal Enforcement Code. Model. Advisory legislative act for the Commonwealth of Independent States (Together with the "List of property not subject to confiscation by court verdict"): adopted in St. Petersburg on 02.11.1996 by Resolution at the 8th plenary meeting of the Interparliamentary Assembly of the CIS Member States // Newsletter of the Interparliamentary Assembly of the CIS Member States (annex). 1997. No. 12) for the CIS member States, the legislation of these countries has undergone significant changes. It is worth noting here that in the CIS there are significant differences between the competent authorities executing non-custodial sentences. For example, in the Republic of Armenia, all non-custodial punishments are carried out by the Probation Service of the Republic of Armenia, while this service is not a structural unit of the penitentiary service. In the Republic of Uzbekistan, although there is a probation service, it is not engaged in the execution of punishment. In the Republic of Kyrgyzstan, probation authorities carry out punishments such as community and correctional labor, restriction of freedom, and compulsory educational measures against minors.

In a comparative analysis of the criminal legislation of the Republics of Armenia (Criminal Executive Code of the Republic of Armenia dated June 28, 2022 ՀՕ-246-Ն), Belarus (Criminal Executive Code of the Republic of Belarus dated 11.01.2000 No.365-3), Kazakhstan (Criminal Executive Code of the Republic of Kazakhstan dated 07/05/2014 No. 234-V), the Kyrgyz Republic (Criminal-the Executive Code of the Kyrgyz Republic dated 01/31/2017 No. 17) and the Republic of Uzbekistan (Criminal Executive Code of the Republic of Uzbekistan dated 04/25/1997 No. 409-I) established that in the above-mentioned states there are types of punishments not related to deprivation of liberty, which are absent in the Criminal Code of the Russian Federation, namely: deprivation of citizenship (Republic of Kazakhstan), expulsion outside the state (Republic of Armenia, Kyrgyz Republic, Republic of Kazakhstan), deprivation of diplomatic rank (Republic of Kazakhstan, Kyrgyz Republic), confiscation of property (Republic of Kazakhstan), deprivation of the order, rank and qualification class (Republic of Armenia).

It is noteworthy that there is no uniformity in this issue between the CIS member states, which is of scientific interest, although the Convention presupposes the regulation of criminal law measures not related to deprivation of liberty, but does not apply to issues related to sentences, according to which a fine is defined as punishment (Part 3 Article 1 of the Convention), as well as other property penalties and confiscation.

Article 5 of the Convention establishes a complete list of grounds for refusing to execute a request for the transfer of non-custodial sentences. Among the numerous grounds, perhaps the initial one is the ground provided for in paragraph "d" of Part 1 of Article 5 of the Convention, since it says that the execution of a request for the transfer of punishment is refused if the type of punishment is not related to the deprivation of liberty to which the person is sentenced, and (or) a measure of criminal law the nature that is applied to him is not provided for by the national legislation of the States of execution of punishment. In connection with the above, it is necessary to clarify what common types of non-custodial penalties the Russian Federation has with members of the signatory States of the Convention.

An analysis of the criminal laws of the CIS member states shows that the Russian Federation, within the framework of the Convention (theoretically), can transfer to the Kyrgyz Republic, the Republics of Belarus, Kazakhstan and Uzbekistan (and vice versa) convicted persons sentenced to non-custodial sentences for further serving such punishments as: compulsory labor (community service), deprivation of the right to hold certain positions or engage in certain activities (deprivation of certain rights – under the Criminal Code of the Republic of Uzbekistan), correctional labor, restriction of freedom. The criminal laws of the Russian Federation and the Republic of Armenia (In accordance with Part 1 of Article 13 of the Criminal Code of the Republic of Armenia dated 06/28/2022-246-Ն, the execution of non-custodial sentences (including fines) is provided by the Probation Service of the Ministry of Justice of the Republic of Armenia) also have similar non-custodial penalties, according to which within the framework of the Convention, it is possible to transfer the execution of non-custodial sentences, which include all of the above penalties, with the exception of correctional labor.

Thus, in our opinion, the Convention of the member States of the Commonwealth of Independent States on the Transfer of Execution of Non-Custodial Sentences, firstly, is promising in solving problems related to the prevention of repeated crimes by citizens of the CIS member states on the territory of the Russian Federation, and secondly, it will relieve the burden on law enforcement agencies (FSIN The analysis of the provisions of the Convention and the criminal legislation of the CIS member states showed that the presence or absence of non-custodial punishments in the criminal legislation of these countries, as well as the peculiarities of solving topical issues on the transfer of execution of non-custodial punishments, is key their performance. Within the framework of the conducted research, the author comes to the conclusion that it is necessary to actively use the possibilities of the Convention in order to solve problems related to the prevention of repeated crimes by citizens of the CIS member states on the territory of the Russian Federation who have been sentenced to non-custodial sentences.