Vol 4, No 2 (2018)

Значимым событием в общественно-политической жизни Самарской области стала межрегиональная научно-практическая конференция с международным участием «Ресоциализация и реальное включение в гражданское общество лиц, отбывших уголовное наказание и освобожденных от него», проведенная 23 мая 2018 года Самарским национальным исследовательским университетом имени академика С.П. Королева при участии и поддержке правительства Самарской области, Общественной палаты Самарской области, Союза женщин Самарской области, Самарского регионального отделения Общероссийской общественной организации «Ассоциация юристов России», УФСИН России по Самарской области, ГУ МВД России по Самарской области, Самарского юридического института ФСИН России, Самарского государственного медицинского университета, Тольяттинского государственного университета и др. В 2017 году проект № 17-1-008568 «Дорожная карта ресоциализации и реального включения в гражданское общество лиц, отбывших уголовное наказание и освобожденных от него (2018–2021 гг.)», заявленный Союзом женщин Самарской области при научном обеспечении Самарского национального исследовательского университета имени академика С. П. Королева, получил грант Президента Российской Федерации на развитие гражданского общества, предоставленный Фондом президентских грантов. Благодаря этому гранту состоялась настоящая конференция. Место проведения конференции – конференцзал правительства Самарской области (г. Самара, ул. Молодогвардейская, д. 210). Число участников – более 300 человек. Особая значимость события была подчеркнута приветствием временно исполняющего обязанности губернатора Самарской области Дмитрия Игоревича Азарова, которое передал участникам конференции Владимир Игоревич Моргунов, заместитель руководителя администрации губернатора Самарской области – руководитель Главного правового управления. «Проведение конференции является важным событием как для нашего региона, так и для всей России в целом, – говорилось в обращении. – Отрадно, что именно в Самаре совместными усилиями ученых и общественных организаций разработан серьезный социальный проект, удостоенный гранта Президента Российской Федерации. К сожалению, зачастую оступившиеся граждане оказываются вычеркнутыми из общественной жизни, не чувствуют себя востребованными. И как следствие  - возвращаются к незаконной деятельности. Мы должны сделать все возможное, чтобы минимизировать такие случаи». Апробация проекта «Дорожная карта ресоциализации и реального включения в гражданское общество лиц, отбывших уголовное наказание и освобожденных от него  (2018–2021 гг.)» (далее – Дорожная карта) стала основной целью конференции. Дорожная карта была представлена в качестве нового нетипичного нормативного правового акта, который бы выполнил одновременно политическую и технико-юридическую роль в ресоциализационном процессе и стал бы базовым официальным источником законодательства о ресоциализации. Дорожная карта – пример «коллегиального» нормативного правового акта, поскольку предполагается, что в его разработке и принятии будут участвовать представители государственной власти совместно с представителями гражданского общества. Проблема предупреждения преступности в равной степени интересует государство и общество и может обусловить реальное социальное партнерство государства и активных участников гражданского общества.

Author analyzes different approaches to the «crime» and «criminality» phenomenon understanding and criminal policy during formation and development of the Russian criminal law. He proposes E. Toffler «wave theory» as a basis of comparative analysis. According to this theory there were three waves of civilization’s progress in the history of mankind, which were independent of society’s national and cultural characteristics or political structure and regime. There were agricultural, industrial and informational «Toffler’s waves». Within each wave’s framework all social links from family to state, law and economy foundations are transformed. During all periods of its history, Russia was inclined to the first wave, the Earth culture. According to it the will of the state bureaucracy became a law. We can see simultaneous affection of the second and the third wave onto political and law system in contemporary world. It predetermines both possibility of advancing Russian state-law system on the higher level of civilization development, also rises the destructive changes linked with «wave incompatibility» danger.

This article examines methodological and legal and technical issues of the legislative definition of the concept of punishment in the Criminal Code of the Russian Federation. It is proved that the normative concept of this measure of an angular-legal character is complex-structured, branched, and its signs are dispersed in the set of normative prescriptions of the General and Special Parts of the Criminal Code of the Russian Federation. The author substantiates the provision that justice can not be oriented simultaneously to several purposes of punishment without harm to the process of taking a judicial decision, since the goals listed in the criminal law and inadmissibility can not be fully realized simultaneously. It is shown that the content of the general concept of punishment can be filled with different meanings and can not be formulated in the criminal law absolutely and unequivocally. Hence, the legislative definition of the concept of punishment must be formal. Formally define criminal punishment means to indicate in the law its scope (that is, the form of the concept). It is suggested to define the concept of punishment first of all by establishing and formulating in the criminal law a system of principles for applying this measure of state coercion (the principle of legitimacy is no punishment without a crime, the principle of legality is no punishment without law, the principle of publicity – punishment is applied only on behalf of the state on the verdict of the court, the principle of guilty responsibility is punishable only by a person convicted of a crime, the principle of proportionate liability is that it is not possible to be punished twice for the same thing, the principle of humanity – penalty may not be designed to cause physical suffering or degradation; etc.), and the general principles of its use. The legislative definition of punishment should also be reflected in the General and Special Parts of the Criminal Code of the Russian Federation by designating specific types of criminal punishment and determining the measure of each of them with the establishment of clear limits to its application. Attention is drawn to the fact that the procedure and conditions for execution and serving of sentences are regulated by the criminal-executive legislation of the Russian Federation; this circumstance means that the essential properties and relations of the notion of punishment are displayed in the adjacent (criminal) legislation.

The article is devoted to the research of legal bases and legal limits of resocialization of persons who have served criminal penalty and were released from it that is especially important in view of interbranch and interdisciplinary character of this phenomenon which is a subject of attention not only of legal, but also sociological sciences. For valuation of systemacity of legislation on resocialization 22 federal legal acts, 81 regional and municipal legal acts were investigated by the author. On the basis of the analysis of current legislation conclusions on deficiency of interrelation and interaction of norms on penitentiary and postpenitentiary resocialization, on a discrepancy of volume of legislative concepts of resocialization and social adaptation with the content of their qualitative signs and also on deficiency of special legal warranties for the released person on rendering the assistance in adaptation to essentially new living conditions to him are drawn. As a result the directions of improvement of current federal legislation which are designed to improve the quality of regional legal acts subsequently and to correct practice of resocialization of persons who have served criminal penalty and were released from it locally are offered.

The article attempts to assess the effectiveness of alternative punishments with labor impact from the point of view of resocialization purposes. It is concluded that wide possibilities of resocialization of convicts are conditioned by the preservation of their professional, labor skills, as well as the duration of resocialization influence in connection with the continuation of socially useful activities and after serving such sentences. Moral and psychological influence on convicts, effective informal social control on the part of the family, labor collective, friends, and socially useful joint work are considered as factors contributing to the successful resocialization of convicts to alternative punishments associated with labor influence. The expediency of the use of labour-related penalties in law enforcement is confirmed by the low rate of recidivism. The article defines the ways to overcome the shortcomings of current regulation of mandatory, corrective, forced labor, impeding the resocialization of convicts.

This article discusses the structure and dynamics of recidivism in the Russian Federation, its regional features. The role of the Investigative Committee of the Russian Federation in countering this social phenomenon is determined. The author conducted a survey of investigators of the Investigative Committee of the Russian Federation, studied the materials of criminal cases. On the basis of the analysis of law enforcement practice, with scientific justification the main directions of counteraction of recurrent crime are defined. It is concluded that the recurrence of crimes does not always indicate an increase in the public danger of the offender, and the principle of economy of repression should be implemented in respect of persons who have committed crimes of small and medium gravity of an economic nature. At the same time, it is necessary to exclude the negative impact of professional dangerous and especially dangerous recidivists on the normal development of society and the state, to prevent the weakening of criminal repression against this category of persons.

The article is devoted to the problems of execution of criminal punishment in the form of imprisonment. The article analyzes the correctional doctrine of the Russian state, manifested in the formulation and implementation of the purpose of convicts’ reformation, and its impact on the status of an induvidual exonerated from serving their sentences. On the basis of international standards and national legislation, priority is given to this purpose over other purposes of punishment and penal enforcement legislation. Some elements of the mechanism for achieving the purpose of correction of convicts are considered, as well as various options for recording repetition of crime after serving imprisonment are considered too. A proposal to reconstruct the existing system of statistical accounting of post-penitential repetition of crime in the USSR is made here, its main stages also are named. The conclusion is made about the preservation of socio-political importance of the purpose of correction of convicts at the present stage of development of state and the preservation of its legislative consolidation in the criminal and penal law of Russia.

The article deals with the problems of guaranteeing the rights of persons who served their sentences in the form of deprivation of liberty and who were released from it. The formation of normative base of the Russian state policy of resocialization of persons who served their sentence and were released from serving it has been studied. It is proved that one of the main reasons for the high level of recidivism is the absence of legislatively guaranteed social and rehabilitation assistance to persons who have served their sentence and were released from it. The goals to reduce the recidivism of crimes, stated in the Concept of Long–Term Social and Economic Development of the Russian Federation for the period until 2020, are not achieved. The conclusion is made about the expediency of taking into account international experience in the sphere of resocialization of convicts to imprisonment. The main attention is paid to the provisions of the UN Standard Minimum Rules for the Treatment of Prisoners (1955) regarding the social care of prisoners after release. Examples of practices in the treatment of prisoners presented at the 12th United Nations Congress on Crime Prevention and Criminal Justice are given. The absence of a qualitative settlement of relations in connection with the resocialization of persons who have served a criminal sentence and have been released from it in modern Russian criminal policy has been confirmed. The necessity of developing a road map for resocialization and real inclusion in civil society of persons who have served a criminal sentence and who have been released from it has been substantiated.

Rendering postpenitentiary help to the persons who have served sentence in the form of imprisonment is the important direction in prevention of recurrent crime. The person after release from correctional facilities often faces a complex of problems of various character inducing to follow again a criminal way. Without the corresponding work on assistance of this category of persons it will be impossible to reduce the number of repeated crimes, and for obtaining qualitative result the organization of rendering such help has to have system character. In the article the author offers system approach to the organization of the postpenitentiary help by means of application of a method of functional system. Such work has to be based on the basis of the analysis of the events held in the certain territorial subjects of the Russian Federation directed to social adaptation of convicts, positive regional experience on decrease in recurrent crime. The author draws a conclusion about the need of improvement of legal regulation in this direction not only in the regions, but also at the federal level.

The article examines the resources of persons who served criminal sentences and have been released from it on the basis of the results of an empirical study carried out within the framework of the project «The road map for resocialization and real inclusion in civil society of persons who have served a criminal sentence and have been released from it (2018–2021)». Two groups of respondents were singled out: those who departed and those who are serving their sentence again. The second group of respondents unites prisoners who serve criminal sentences repeatedly, which are considered in the study as carriers of ineffective practice of post-penitentiary resocialization. The analysis identifies groups of more and less adapted respondents, studies the role of social and human capital in ensuring the effectiveness of the process of resocialization. The collected data clearly demonstrate that the criminal biography of the respondents obviously hinders the processes of resocialization in all spheres of their life activity. On the other hand, the qualifications acquired as a result of getting an education do not always play a big role in resocialization, a much more effective strategy is to find employment in any capacity, even in the situation of incomplete compliance or inconsistency with the work of the available qualifications. In conclusion, recommendations are given regarding the need to develop the reflexivity of prisoners, their self-actualization and planning skills for various spheres of life after they are released.

The article explores and evaluates the potential of penitentiary and post-penitentiary resocialization experience accumulated in foreign countries. Analyzing the programs of resocialization developed abroad, the technologies being established, approaches to determining their effectiveness. Foreign programs of resocialization, implemented by international organizations, are analyzed, as well as the approaches determining their effectiveness. It was revealed that in some foreign countries, various religious and public organizations, as well as specially created by the state for these purposes probation services, are responsible for resocializating of persons who have served their sentences and were released from it. The necessity of creating a «resocialization ecosystem», including regional ecosystems combining the following sectors: education and science, public health, society, business, state, is proved. An analysis of foreign sources has shown that many countries have accumulated sufficient experience in the research direction, which can be used in order to develop an effective national system of expirees’ resocialization.

The article is devoted to the consideration of existing approaches in foreign countries to the process of returning a prisoner to society after being released from places of deprivation of liberty. The article analyzes external and internal reasons that interfere with successful resocialization of convicts. As a result of the analysis, the author identifies factors that contribute to the success of the process of resocialization of prisoners, among which social work is the main place. For the effectiveness of re-socialization of certain groups of convicts, targeted programs are needed. The conclusions formulated in the article can be used both in the development of re-socialization programs for convicts in certain institutions of the penitentiary system or in social public organizations, and in the development of regulatory and legal framework regulating the activities of the entire domestic penitentiary system.

The article deals with problems of differentiation of criminal responsibility depending on the social danger forms of multiple offenses. Conception of differentiation of responsibility is defined. Provisions of the existing criminal legislation are analyzed based on responsibility for the repeated crime and recidivism. The norms of the current legislation, judicial practice, judicial statistics are examined and noticed that the regulation of criminal responsibility in the Criminal Code contradicts to the forms of multiple crimes, and not according to the principles of humanism, justice, and the inevitability of punishment. The conclusion about expediency of a differentiated approach to casual and professional criminals is made. In conclusion, proposals for the reform of Criminal Code of the Russian Federation are formulated in order to ensure the optimal differentiation of criminal responsibility, taking into account public danger forms of multiple offenses.

The article analyzes certain problems of ensuring the procedural independence of an investigator in the Russian criminal process. The author notes the inner inconsistency of the norms of modern Russian criminal procedural legislation concerning the participation of an investigator in criminal proceedings, which raises problems when trying to apply said norms practically. The author also claims these issues of the criminal procedural legislation to be one of the factors reducing the procedural independence of an investigator. The article examines the influence of prosecutor’s supervision, as well as departmental and judicial control on the procedural independence of an investigator. There is an emphasis on the considerable debatableness of these issues. The article sees the investigator's discretion as the main way of realizing his procedural independence. Summing up, the author makes proposals on improving Russian criminal procedure legislation and disposing of duplicate control over the investigator's activities.