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§ 3. Practice of application and a perfection way uslovnodosrochnogo clearings of enduring the punishment and replacement of not left part of punishment with softer kind of punishment

The order of application of incentive institutes of is conditional-preschedule clearing and replacement of not left part of punishment with softer kind of punishment is regulated by the criminally-executive legislation.

According to ч.1 item 175 Wick the Russian Federation condemned to which on the formal bases can be applied UDO, have the right to address in court with the petition about conditional-parole from enduring the punishment. The given petition submits the condemned through administration of establishment or the body executing punishment. Earlier the establishment or the body executing punishment, brought in court representation about UDO condemned from enduring the punishment. The constitutional Court of the Russian Federation the decision from November, 26th, 2002 № 16-P recognised positions of item 77.2 being in interrelation and ch. 1 items 175 Wick the Russian Federation as not excluding the right condemned on a reference to the court with the request for softening of the appointed punishment by UDO and not contradicting the Constitution of the Russian Federation. And the Federal act № 161-FZ has brought from 08.12.2003 respective alterations in ch. 1,2 items 175 Wick the Russian Federation.

According to E.V.Pisarevoj after the condemned had a right directly to address in court, at administration IU interest in the proved and effective application of institute UDO was gone, employees IU have lost real levers of influence on condemned, used for achievement of the purposes of punishment [349]. Meanwhile in item 5 of the decision of Plenum of the Supreme Court of the Russian Federation from April, 21st, 2009 № 8 «About judiciary practice of is conditional-preschedule clearing of enduring the punishment, replacement of not left part of punishment with softer kind of punishment» it is spoken: «the Conclusion of court that condemned for the correction does not require full serving of the punishment appointed court or deserves replacement of not left part of punishment with softer kind of punishment, should be based on the all-round account of data about its behaviour for all period of enduring the punishment, and not just in time, directly previous petition or representation consideration» 1.

There is an opinion, that regulation UDO should be carried out only by the criminal law, i.e. the substantive law, and articles Wick the Russian Federations devoted to is conditional-preschedule clearing of punishment, actually make additions to item 79 UK the Russian Federation [350 [351]. The Supreme Court position on this question is reflected in supervising Definition of the Supreme Court of the Russian Federation from April, 9th, 2007 № 82-D07-2 (under the condemned Ivanova L.V.'s complaint to wrongful refusal in conditional-parole from enduring the punishment). In the given Definition it is specified, that, «detailing positions of item 79 UK the Russian Federation, the criminally-executive legislation in item 9 Wick the Russian Federation is standard defines concept of correction, and of item 175 Wick the Russian Federation legislatively fixes the criteria, testifying that for the further correction the condemned does not require full serving of the punishment appointed court [352]». It is obvious, that such position is objective and true.

In supervising Definition of the Supreme Court of the Russian Federation from January, 15th, 2009 № 37-D08-18 (under the complaint to wrongful refusal in is conditional-preschedule clearing of enduring the punishment condemned H) requirements which are shown by vessels at an estimation of the person condemned and its correction are noted. In it it is told, that criteria of application UDO for all condemned are: lawful behaviour, the objective relation to sodejannomu, absence of malicious infringements, a conscientious attitude to duties in serving of the appointed punishment, and also the valid relation to others condemned and to the personnel ugolovnoispolnitelnoj systems. Thus courts should consider behaviour of the enduring the punishment condemned for all period, to take into consideration both encouragements available for it, and the collectings, remained not left the penal term. In the given Definition the attention and that the law does not demand that the condemned had any special, exclusive merits [353] has been paid.

Criteria of application of incentive institutes UDO and commutation are closely connected with criteria of an estimation of behaviour condemned which are the major means of increase of efficiency of corrective influence and application of incentive institutes of the criminally-executive right. Taking into account those criteria of an estimation of behaviour condemned which were offered for fixing in ch. 4 items 9 Wick the Russian Federation, (about it it has been noted in the first paragraph of the third chapter of dissertational research - S.B.) it is necessary to provide also, that in the characteristic which is prepared by administration of establishment or the body executing punishment, after giving of the petition condemned about UDO or replacement of not left part of punishment with softer kind of punishment data about conformity of its behaviour to criteria of an estimation of behaviour condemned in enduring the punishment should contain also agree ч.4 item 9 Wick the Russian Federation. It will promote acceptance by vessels of the objective decision about UDO the condemned.

According to NIIIT FSIN Russia, in 2012 from IU it has been released 253 316 condemned, from them on UDO - 88 050 persons, or 34,7 % from total released; in 2011 the given parity was up to standard of 41,4 % (the Appendix № 14 see). Thus vessels in 2012 had been released conditionally-ahead of schedule 8688 administrations IU condemned at the negative characteristic that constitutes 9,9 % from all

Released on UDO (in 2011 - 9,0 %).

Quite often courts refuse in UDO condemned at the positive characteristic of administration IU. In 2012 by vessels it has been given up in UDO 59564 condemned, and with the positive characteristic of administration IU - 21382 condemned, that constitutes 35,9 % (in 2011 -

35,0 %) from all refusals of vessels in the given kind of clearing (the Appendix № 15 see). The analysis of 173 decisions of vessels about refusal in UDO from various regions of Russia, and also the materials received from territorial bodies FSIN of Russia at research of problems of perfection of incentive institutes, applied in IU UIS, in a current 2012 and testifies 2013 that the basic formulations of negative decisions of vessels at the positive characteristic of administration IU are: weight of the committed crime and considerable term; social justice is not reached; absence at court of confidence of correction; by court it is not established the sufficient data set, specifying in correction of the condemned; the punishment purpose is not reached; presence of summary punishments during all period of imprisonment (in spite of the fact that these collectings either are extinguished, or are removed ahead of schedule - S.B.) ; Absence in a current of the long period of time (in a current of 1 year) encouragements, and then reception of one encouragement in this connection the court characterises behaviour condemned in enduring the punishment as astable; presence of the claim which is not extinguished in full volume (though in ч.1 item 175 Wick by the Russian Federation it is noticed, that in enduring the punishment the condemned should indemnify the caused loss partially or completely or otherwise to smooth down the harm put by a crime - S.B.); committing a crime in not left part of punishment after is conditional-preschedule clearing; absence of confidence that the condemned will not commit a new crime and others.

Thus, one more problem - absence of the uniform approach in application of the given incentive institute and close interaction of administration IU with vessels is available. The certain measure of inconsistency is quite justified, however its excessive increase can testify or to certain departmental installations, low qualification of representatives of the parties, about low level of mutual trust or even about corruption influence. By the way in the organisation of corruption schemes take part both employees of administration IU, and representatives of the judicial case, that finally leads to discredit of this important incentive institute. Thus the bribe sum varies depending on region and reaches on the average to 100 thousand рублей1.

Courts at the question decision, whether are available the bases to recognise person not requiring for correction in full departure of the punishment appointed court, frequently investigate behaviour condemned not in enduring the punishment, and at the moment of fulfilment of a crime by it, that the Russian Federation [354 [355] leads to errors in application of item 79 UK. Nevertheless according to the decision of Plenum of the Supreme Court of the Russian Federation from April, 21st, 2009 № 8 «About judiciary practice uslovnodosrochnogo clearings of enduring the punishment, replacement of not left part of punishment with softer kind of punishment» courts have not the right to give up in UDO or replacement of not left part of punishment with softer kind of punishment on the bases which have been not specified in the law, such as criminal record presence, softness of the appointed punishment, non-recognition condemned fault, short duration of its stay in one IU [356].

On materials of our research on a question: «As you consider, what changes should be provided in the criminally-executive legislation for perfection of an order of application of institute UDO?» More than third of interrogated judges (34,5 %) and 14,5 % of representatives scientific and educational institutions FSIN of Russia have noticed, that it is necessary to specify in the law, that administration IU considers the characteristic condemned, submitted the petition about UDO, on the commission of establishment and then takes to court the given petition together with the decision of commission IU and the characteristic on the condemned. It is even more judges (36,5 %) and 19,7 % of scientists and teachers consider expedient to fix in the law, that compulsory condition UDO is absence at condemned operating collectings for infringement of a mode of the maintenance. According to every tenth judge (11,1 %) and 41,1 % of teachers it is necessary to provide two above-stated changes in the law. And accordingly

11,1 % and 6,7 % of respondents hold other opinion, namely: to apply UDO at absence both operating, and the extinguished collectings at the enduring the punishment condemned for all period; to apply UDO at acceptance condemned measures to compensation of a material damage (compulsory condition); to concretise criteria of behaviour condemned to which it is applied UDO; not to apply UDO to persons to whom earlier it was applied UDO; to specify kinds of crimes, on which at all [357 [358]

It is necessary to apply UDO. And, at last, 6,8 % and 3,8 % interrogated

Have refrained from the answer (the Appendix № 10,11 see).

What influence renders presence of operating collectings at definition by court of degree of correction condemned and decision-making about UDO? The analysis of decisions of regional vessels about conditional-parole from enduring the punishment from various regions of Russia testifies, that on the given question various opinions are quite often stated. One courts, having established presence of the removed or extinguished collectings, refused on this basis in application UDO, other courts satisfied petitions if collectings have been removed or extinguished, character of infringements was insignificant and had incidental character. Other data were estimated also, sufficient for a conclusion that though the condemned had infringements of mode IU, nevertheless has followed a way of correction which can be definitively reached in the conditions of it ресоциализации1.

By results of our research on a question: whether «it is necessary to specify in the law, what compulsory condition UDO is absence at condemned operating collectings for infringement of the established order of enduring the punishment?» - 86,4 % of employees IU and 77,1 % of chiefs, assistants to chiefs of territorial bodies FSIN of Russia and chiefs IU have answered positively, 7,9 % and 22,9 % - are negative, 5,2 % of employees IU - were at a loss to answer and 0,5 % of employees IU - have answered other. The same question the majority condemned to imprisonment (51 %) have answered positively, 35,2 - it is negative, 12,5 % - were at a loss to answer, 1,3 % - have answered other (the Appendix № 1,2,3 see). The analysis of private affairs condemned testify that administration IU, as a rule, represents to court the negative characteristic on condemned, 1 having any not removed or outstanding collecting (even reprimand) as on degree of correction such condemned it is considered the person characterised from a negative side. Accordingly, even if at condemned there was enough considerable quantity of encouragements during enduring the punishment and it has for example, only one collecting in the form of reprimand at the moment of petition giving on UDO, administration IU will be against it UDO. The court in this case can make the positive decision on its parole.

In item 6 of the Decision of Plenum of the Supreme Court of the Russian Federation from April, 21st, 2009 № 8 collectings imposed on condemned for all period of enduring the punishment, taking into account character of the admitted infringements come under to an estimation court in aggregate with other data characterising it. Thus presence or absence at the condemned collecting cannot serve both an obstacle, and the basis to its is conditional-preschedule clearing or replacement of not left part of punishment with softer kind наказания1. According to D.Dolgopolov it is necessary for court to estimate all received condemned collectings during serving наказания2. Such position will be adjusted with a conclusion resulted in definitions of the Constitutional Court of the Russian Federation concerning application of is conditional-preschedule clearing. So, in item 2 of Definition of the Constitutional Court of the Russian Federation from November, 24th, 2005 № 449 «About refusal in taking cognizance of the complaint of citizen Soloveva A.V. In infringement of its constitutional laws by a part of first article 175 of the Criminally-executive code of the Russian Federation »it is specified, that« the legislator does not establish, which value at the decision of a question on is conditional-preschedule clearing of enduring the punishment those or other data can have, giving to that to court of the general jurisdiction the right in each concrete case to solve, whether these are sufficient [359] data for a recognition condemned not requiring full serving of the punishment appointed court and coming under to is conditional-preschedule clearing ».

Nevertheless, collecting presence testifies that the condemned is characterised negatively during enduring the punishment. Whether according to our research on a question «Probably, in your opinion, to apply UDO to the persons having any not removed or outstanding collectings for infringement of the established order of enduring the punishment?» The majority of judges (79,6 %) have answered negatively, 14,2 % - are positive, 3 %-were at a loss to answer, and 3,1 % - have answered other, namely: probably, but depending on character of infringement of an order of enduring the punishment; the law in force of it does not forbid; probably with an estimation of character of infringement and depending on legality and validity of collecting (the Appendix № 10 see). Taking into account the above-stated it is represented

Expedient to specify in item 175 Wick the Russian Federation about restriction of application UDO to the persons having for consideration of a question on the given kind of clearing any not removed or outstanding collectings for infringement of the established order of enduring the punishment.

Interviewing of representatives of administration IU and the analysis of the offers connected with perfection of incentive institutes, applied to condemned, leaving punishments in IU UIS, has shown, that many employees IU consider expedient to specify in the law necessity of discussion of characteristics condemned, submitted petitions about UDO and commutation by its softer kind, on commissions IU. The given problem has great value both for administration IU, and for vessels which make the decision about UDO.

Earlier, before coming into force of the Federal act from 08.12.2003 № 161 FZ all materials on condemned, preparing to UDO, were considered on such commissions. Now according to methodical recommendations about system use «social lifts» in correctional facilities FSIN of Russia in the conditions of the current legislation commission IU according to behaviour condemned without fail hold sessions in case of question consideration about UDO the condemned. The chairman of such commission is the deputy chief of establishment on shots and educational work, and its structure except employees IU includes also representatives of public authorities of the corresponding subject of the Russian Federation and municipal union bodies, representatives of the public observant commissions, representatives under human rights in subjects of the Russian Federation or their representatives, representatives of the religious organisations, the associations operating in corresponding territory. Meanwhile, in our opinion, chiefs IU for acceleration of process of consideration of the presented materials as on UDO condemned should head such commissions IU and decision-making is direct at commission session.

It is obvious, that consideration of characteristics condemned by commissions IU according to their behaviour at all does not restrain their rights and does not contradict the current legislation. Final judgement about that, it is worthy condemned applications UDO, and also commutations or not, accepts court. Objectivity and validity of materials represented to court after their preliminary discussion on commission IU essentially raises. Besides on materials of our research

78,2 % of employees IU and 82,3 % of heads of territorial bodies FSIN of Russia and chiefs IU consider expedient to fix in ch. 2 items 175 Wick the Russian Federation position that the administration of establishment or the body executing punishment, considers the characteristic condemned, submitted the petition about UDO or commutation, on the commission of establishment and then are taken to court by the given petition together with the decision of the commission of establishment and the characteristic on the condemned. At the same time 14,3 % and 7,3 % interrogated - do not agree with such position, 7,1 % and 10,4 % - were at a loss to answer, and 0,4 % of employees IU - have answered other (the Appendix № 1,2 see).

Also it is expedient to make changes to paragraph 5 of methodical recommendations about system use «social lifts» in IU FSIN Russia in the conditions of the current legislation and to include in structure of the commission as its chairman of chief IU, and in structure - the representative of the bodies which are carrying out the control over behaviour released conditionally - ahead of schedule during not left it of a part of punishment, and also a member of a board of guardians at VK and the representative of bodies and establishments of system of preventive maintenance of neglect and offences of minors (for example, the Commissions on Juvenile Affairs and protection of their rights) at discussion of materials on condemned, serving time in VK.

The law establishes the minimum term of actual departure of imprisonment (not less than six months) after which to the condemned it can be applied UDO (ch. 4 items 79 UK the Russian Federation). Thus imprisonment term is estimated from the date of the conclusion condemned under guards, as according to ch. 3 items 72 UK the Russian Federation time of the maintenance of the person under guards before proceeding are set off in time imprisonments. Besides, in IK the general, strict and special modes according to a part of first item 120, 122, 124 Wick the Russian Federation term of a finding of the enduring the punishment condemned in usual conditions is estimated from the date of taking into custody if to it in stay in an investigatory insulator the disciplinary measures in the form of a settlement in a punishment cell were not applied. In this connection at condemned, being in colonies of the general mode at which small term of imprisonment, the actual minimum which gives possibility of application UDO, comes after one or two months of stay in IU.

According to JU.M.Tkachevsky in more short terms (less than six months) it is practically impossible to establish the fact of firm formation of the correction condemned on a way with sufficient confidence. And the purposes facing to punishment hardly probable can be reached in any measure for a smaller interval времени1. Of this year Barsukova considers, that such rule (stay in IU not less than six months) is directed on providing formation check on a correction way to exclude cases of erroneous application by court is conditional-preschedule освобождения2. It is valid, difficult to judge what corrective influence renders the maintenance of the person in an investigatory insulator (SIZO) to the decision of a sentence of court, after all till the specified moment employees SIZO by definition cannot be engaged in process of correction condemned (as to the decision the person is considered court of a verdict of guilty innocent and speech about correction cannot go) 3. As a result the court has poor data of the general character on behaviour condemned in its stay in SIZO.

It is obvious, that in time, specified in ch. 4 items 79 UK the Russian Federation, the period of real enduring the punishment in a corrective colony should enter only. Besides, in time less than six months to study the person condemned for preparation on it of the objective and all-round characteristic about its readiness to observe rules of behaviour accepted in a society is rather difficult. In this connection it is offered to add in ч.4 item 79 UK the Russian Federation after [360]

Words "condemned" by words: «in correctional facility,

Disciplinary military unit or the correction centre »and further under article text.

One of problems is that according to item 399 UPK the Russian Federation «the Order of the permission of the questions connected with execution of sentence» is not required obligatory participation in the given process of the parties of charge and protection. At the same time, taking into account the developed practice the public prosecutor, as a rule, participates in session of the court and the opinion on everyone condemned - to the candidate on UDO expresses. It is thought, that for efficiency of the control over actions of administration IU and observance of the rights and legitimate interests condemned expediently that on court sessions on the questions connected with execution of sentence, and especially in connection with clearing condemned, public prosecutors took part without fail.

In practical activities, for example in GUFSIN Russia on Sverdlovsk area, with a view of streamlining of the procedures connected with execution of requirements of item 79 UK the Russian Federation and item 175 Wick by the Russian Federation, have been issued the joint order of Office of Public Prosecutor of Sverdlovsk area and GUFSIN Russia on Sverdlovsk area from 13.04.2005 №27/545 «About an order of interaction of Office of Public Prosecutor of Sverdlovsk area and GUFSIN Russia on Sverdlovsk area by consideration of questions of is conditional-preschedule clearing of enduring the punishment». In item 1.1 of the given order it is noted about obligatory participation in sessions of the court of public prosecutors on supervision of observance of laws in IU by consideration of materials about UDO from enduring the punishment of the condemned. In some territorial bodies FSIN of Russia (on Krasnoyarsk and seaside edges, the Arkhangelsk and Ulyanovsk areas) petition consideration about UDO condemned also preliminary is adjusted with organs of the Prosecutor's Office. In the given regions a share of refusal by vessels in satisfaction of petitions about UDO, the organs of the Prosecutor's Office submitted at support, rather невелика1. Approximately the same situation develops and in other regions where the percent of refusal does not exceed 10 %. The exception is constituted by such regions, as Republic Tatarstan (11,4 %), Kurgan area (26,8 %) and Republic Dagestan (35,5

%).

We believe, that obligatory participation of the public prosecutor in the questions connected with execution of sentence, will raise efficiency of the given procedure. In this connection it is necessary to make changes in ch. 1 items 399 UPK the Russian Federation having specified, that the questions connected with execution of sentence, are considered by court with participation of the public prosecutor.

It is necessary to notice, that feature of application of institute UDO in foreign countries is a variety of the competent bodies participating in this process. In England and the Wales the important role in this procedure is played by Council on UDO, which according to the Law of the punitive justice of 1991 (judge) and several (as a rule, three) members consists of the chairman. The Council structure could change depending on concrete business and be discussed with the Minister of Internal Affairs [361 [362].

Councils about affairs condemned to life imprisonment are headed by judges of Royal court only in those cases if affairs are connected with following crimes: murder or wound of employees of police or prisons; terrorism; rape; assault with intent to rape, causing of a mutilation and murder of the child; murder in parole from the previous punishment connected with a similar crime; the crimes, entailed plurality of punishments. In other cases chairmen of Council on UDO, as a rule, are judges on local court criminal cases. The second member of Council on UDO usually appoints the psychiatrist. In the presence of conclusive medical indicators about absence of gross infringements in mental condition condemned at the moment of committing a crime or during enduring the punishment by the second member the psychologist or the officer of service probatsii can be approved. The third member of Council on UDO appoints the criminologist, the psychologist or the officer of service пробации1.

The same councils as in England and the Wales, are created to the USA (commission) and Canada. S.Guriev and O.Tsyvinsky notice, that in the USA to define, how much this or that prisoner is dangerous to a society the commissions on parole were traditionally created. As a rule, members of the commission are appointed the governor of staff to long terms (in Georgia, for example, for seven years). The specified commissions include public figures, experts in the field of psychology and criminalistics, the former judges etc. S.Guriev and O.Tsyvinsky consider, that in Russia it is necessary to create the commissions on UDO with public participation not on federal, and at regional level, so that (as well as in the USA) their members made more informed decisions on the one who represents and who does not represent danger to a society [363 [364]. In France the Advisory committee is created at the Minister of Justice who considers questions UDO, thus final judgement is accepted by the Minister of Justice [365]. In Germany, Austria and Switzerland the decision about UDO accepts court, in Spain - court on executive supervision.

UDO to prisoners in Russian empire in 1909 also it was considered at Special Meeting, under presidency of one of local world judges where under the majority vote the decision on granting to the prisoner is conditional-preschedule освобождения1 was made. Into structure of Special Meeting entered including representatives of local committee or society branch popechitelnogo about prisons or societies патроната2. The special Meeting on the majority vote made the decision

0 granting to prisoner UDO and then directed business about conditional parole of the prisoner to district court.

Taking into account historical and foreign experience of formation and functioning of independent constantly operating bodies on UDO to parole condemned by analogy to the Russian Special Meeting, Council on UDO England or Advisory committee of France which would consider questions about UDO condemned or replacement of the not left part of punishment with it softer kind of punishment, including in connection with modern requirements of struggle against corruption it is represented expedient to create committee concerning parole condemned in subjects of the Russian Federation (further the committee) which could become independent constantly operating body on preliminary consideration of petitions and statements on parole condemned and to entering of recommendations about expediency of the given kind of clearing in court for decision-making.

According to our research, whether on a question «Expediently to create committees concerning parole condemned in subjects of the Russian Federation, how independent bodies on preliminary consideration of petitions and statements on parole condemned and to entering of recommendations about expediency of the given kind of clearing in court for decision-making?» The majority of judges (75,2 %), employees IU (60,7 %), workers of educational institutions FSIN [366 [367]

Russia (55,1 %) have answered positively, accordingly 14,8 %, 31,7 % and 34,9 % - are negative, 7 %, and 7,6 % and 6,9 % - were at a loss to answer, and 3 % of judges and 3,1 % of scientists and teachers - other (the Appendix № 1,10,11 see).

The committee structure could include representatives of following organisations and establishments: public authorities

The corresponding subject of the Russian Federation or municipal union bodies; territorial organ of the Prosecutor's Office of subjects of the Russian Federation; territorial body FSIN of Russia; FKU ugolovnoispolnitelnaja inspection of territorial bodies FSIN of Russia; the law-enforcement bodies which are carrying out the control over behaviour of the penal term released conditionally-ahead of schedule during not left part or service probatsii (at its creation); lawyer chamber of the subject of the Russian Federation; the public observant commissions; the device of representatives under human rights in subjects of the Russian Federation; public associations of the organisations which take part in social rehabilitation released condemned and operate according to the federal legislation; the Commissions on Juvenile Affairs and protection of their rights; boards of guardians at VK (for released minor age); social councils at territorial bodies UIS; Services of the psychological help to the population of the subject of the Russian Federation, and also scientists, cultures, formations. Thus, in committee structure probably to include nearby 18 persons.

Thus representatives of following organisations should accept obligatory participation: public authorities of the corresponding subject of the Russian Federation and (or) municipal union bodies; territorial organ of the Prosecutor's Office; territorial body FSIN of Russia; FKU criminally-executive inspection of territorial bodies FSIN of Russia; the law-enforcement bodies which are carrying out the control over behaviour released conditionally-ahead of schedule during not left it of a part of the penal term or service probatsii (at its creation); services of the psychological help to the population of the subject of the Russian Federation.

In case of realisation of the given offer in ч.2 item 175 Wick to the Russian Federation followed specify, that administration of establishment or the body executing punishment, directs to committee concerning parole of the condemned subject of the Russian Federation the petition condemned together with the characteristic on it. The given Committee within 15 days after reception of corresponding materials from administration of establishment or the body executing punishment, considers materials about parole condemned and takes to court the Committee recommendation about expediency or inexpediency of application of the specified kind of clearing concerning the condemned. In connection with the author set forth above the project of the Decree of the President of the Russian Federation «About committees concerning parole condemned in subjects of the Russian Federation» in which is developed Position about an order of consideration of petitions and statements for parole by committees concerning parole condemned in subjects of the Russian Federation »(the Appendix № 16 see) is developed«.

One of actual foreign experiences of parole of the places of confinement is clearing condemned of prison under electronic supervision. Such way of supervision over condemned becomes more and more popular means with which help their behaviour is supervised. In 1987 in the USA electronic monitoring had been covered only 826 criminals, and in 1998 this number has increased to 95 000. Realisation of electronic supervision as conditions of parole from prison is quite successfully applied in England and the Wales, the Netherlands, Sweden, Australia, Israel, Singapore and the United States of America. In England and the Wales within 1998 more than 16 thousand offenders were unbound under electronic supervision. Prisoners who fulfil the established requirements, can be released from electronic supervision of 60 days prior to the term termination приговора1. In Austria electronic foot bracelets put on on ahead of schedule released which have sentenced on the penal term not less than three years.

In England, the Wales and Scotland at revealing of infringements the contractor (performance of the program of electronic monitoring the private companies are engaged) renders the account to a department on execution of punishments which solves a question on change of conditions of clearing or cancellation of the licence on conditional-parole under electronic supervision. If the default fact to prove to be true, as a rule, the licence responds also the prisoner comes back in prison where it leaves the remained term of a sentence, will not come yet automatic or conditional освобождения2. According to Matthew Demichel Leksington, Bryan Pejn service probatsii and the private legal companies of the USA, carry out electronic supervision for unbound condemned, co-operating with courts of justice on the questions connected with infringements, received by means of electronic bracelets. Representatives of service probatsii at non-observance by the person of conditions of clearing, give the proofs received by means of electronic supervision in court. The court at adjudication, leans against the proofs given by means of electronic supervision and recognises guilt осужденного3.

It is represented, that UDO condemned under electronic supervision in not left part of punishment it is possible to apply and in Russia, especially to [368] categories condemned for crimes against sexual inviolability of minors and to other kinds especially grave crimes against the person. Results of our research (2009) testify, that about 58,6 % condemned to imprisonment agree on UDO under condition of electronic monitoring (carrying of an electronic bracelet) behind their behaviour in case of putting on by court of certain duties (for example not to change a constant residence, work, study without notice specialised state body), 32,6 % - do not agree these conditions, 1,8 % - were at a loss ответить1.

Besides, on a question: «If agree, what period of time you could carry an electronic bracelet for control of your behaviour?» - Answers were meted as follows: from 2 till 5 months - 28,6 %; from 6 months till 1 year - 24,8 %; from 1 year till 2 years - 21 %; more than 2 years - 25,6 %. Thus, a quarter interrogated even agree with the given kind of the control for the term of more than 2 years. In modern conditions quite probably realisation of electronic supervision of the persons released conditionally-ahead of schedule in large settlements of Russia. The given means of the technical control will raise efficiency of supervision for released conditionally-ahead of schedule and will allow to reduce level of recurrent criminality among them. In connection with the above-stated it is represented optimum to specify in ch. 2 items 79 UK the Russian Federation, that court discharge of duties on observance of conditions of monitoring behind it with use electronic and others has the right to assign on conditionally-ahead of schedule released means of supervision and the control in the remained not left part of punishment for the term from 2 months till one year inclusive (the Appendix № 45 see).

It is known, that applying conditionally-parole, the court can assign on condemned the duties provided by a part of fifth article 73 UK the Russian Federation which should them be executed during remained not [369] left parts of punishment. Thus function of the control for conditionally-ahead of schedule released could be assigned to criminally-executive inspections FSIN of Russia. The concept of development UIS the Russian Federation till 2020 provides transfer in UIS powers on control of the persons released conditionally-ahead of schedule from the places of confinement. Now function of the control over behaviour conditionally-ahead of schedule released from the places of confinement is carried out by employees of police.

According to item 26 of item 12 of the Federal act «About police» on police duties on control (supervision) of observance by the persons released from the places of confinement, established for them court according to the federal act of interdictions and restrictions are assigned. However any help in social adaptation of the persons released conditionally-ahead of schedule from enduring the punishment in the form of imprisonment, to life conditions in a society employees of police do not render. As a rule, the purposeful and regular help condemned in the decision of their social questions after clearing from the places of confinement, the state organisations also do not render. Frequently it leads to that the given category of the persons released conditionally-ahead of schedule, not finding support and the help from a society in the decision of social problems, again follow the road crimes and other offences.

In this connection, function of the control for conditionally-ahead of schedule released of the places of confinement is expedient for assigning to service probatsii which creation is provided by the concept of long-term social and economic development of the Russian Federation for the period till 2020, approved by the order of the Government of the Russian Federation от17.11.2008 № the 1662-river the Term "probatsija" (from an armour. Probation - test) is used in foreign practice in connection with activity on execution of the punishments which have been not connected with isolation condemned from society. The service probatsii was created for the organisation of work with condemned and to punishments alternative to imprisonment, and also with the persons released from the places of confinement. In development in the various countries the service probatsii began to incur functions of is social-rehabilitation activity concerning more wide range of citizens which have violated the law and require social rehabilitation. Thus, the given service carries out not only control functions, but also is social-rehabilitation problems that can promote reduction of recurrent criminality among released of the places of confinement.

Criminally-executive inspections (UII) FSIN Russia have saved up a certain experience of execution of alternative punishments and measures ugolovnopravovogo character that is a basis of activity of service probatsii. Putting on on employees UII of additional functions under the control over behaviour conditionally-ahead of schedule released, will raise efficiency of the control over the given category released of the places of confinement, rendering of the social help by it and will result, in our opinion, to decrease in level of repeated criminality.

In this connection it is expedient to assign to criminally-executive inspections FSIN of Russia realisation of duties under the control over behaviour of the persons released conditionally-ahead of schedule, with granting of the right by it to initiate before court a question on cancellation UDO according to ch. 7 items 79 UK the Russian Federation.

According to S.Ulitskogo, it is desirable, that insufficiently steady condemned were before is conditional-preschedule clearing any time for a semifree mode, i.e. in a colony - поселении1. Thus term of the given transfer should come before term UDO. In practice in [370] some employees IU GUFSIN of Russia across Krasnoyarsk region use a principle of application of is conditional-preschedule clearing through change of a kind of a corrective colony in the form of transfer in a colony - settlement as a necessary stage before UDO, explaining condemned advantages of such system. Thus practical workers also consider, that is necessary to provide reduction of terms of approach of transfer in KP, for example for condemned IK a strict mode, first, in connection with a competition to incentive institutes UDO and commutations by its softer kind, secondly, as the incentive institute of change of kind IU promotes successful social adaptation condemned, to reduction repeated and recurrent преступности1.

In our opinion transfer from IK in KP as the obligatory stage to UDO, is inexpedient as limits possibility UDO for all categories condemned and mismatches principles criminal and ugolovnoispolnitelnogo legislations, and also to the international standards of the reference with prisoners. At the same time we agree that it is necessary to differentiate application possibility on terms

Incentive institutes UDO and commutation by its softer kind, and also change of kind IU in translation quality in a colony-settlement in connection with a competition of these institutes, having reduced obligatory terms of approach of replacement of not left part of punishment by softer kind of punishment and transfer from IK in KP for separate categories condemned.

Consideration of an order of application of incentive institute of replacement of not left part of punishment by softer kind of punishment, in our opinion, is interconnected with a problem of definition of kinds of punishments which are necessary for using at replacement of not left part of punishments in the form of [371] forced hard labour, maintenances in disciplinary military unit or imprisonments by other punishment with smaller volume of retaliatory influence.

According to ch. 3 items 80 UK the Russian Federation replacement of not left part of punishment with softer kind of punishment are carried out by appointment instead of the remained not left part of punishment of any softer kind of punishment according to item 44 UK the Russian Federation, in the limits provided by the criminal law for each kind of punishment. So, for punishment in the form of forced hard labour by softer kinds of punishments the following is: the penalty, the debaring to occupy certain posts or to be engaged in certain activity, deprivation special, military or an honorary title, a class rank or the state awards, obligatory works, correctional labour, freedom restriction, restriction on military service. Concerning the maintenance in disciplinary military unit of replacement softer kinds of punishment are, except the above-named kinds of punishment, also forced hard labour and arrest. Concerning imprisonment for certain term softer kinds of punishment - all named, and also the maintenance in disciplinary military unit, i.e. theoretically for imprisonment replacing punishment can be any punishment according to the kinds of punishments specified in article 44 UK the Russian Federation.

However punishment in the form of the maintenance in disciplinary military unit, agrees ch. 1 item 55 UK the Russian Federation, can be applied only to the military men, passing military service on an appeal or under the contract on posts of the private soldier and serzhantskogo structure if they at the moment of removal by court of a sentence have not served statutory service life on an appeal, and restriction on military service (ч.1 item 51 UK the Russian Federation) - only to the military men, passing military service under the contract, that is the given kinds of punishments are special

Punishment, therefore it is impossible to replace not left part of imprisonment with the punishment applied only to the military men. Besides, according to the item "e" ch. 1 item 51 of the Federal act from March, 28th, 1998 № 53-FZ «About a conscription and military service» the military man comes under to dismissal from military service in connection with becoming res judicata of a sentence of court about appointment to it of punishment in the form of imprisonment [372], that is it ceases to be the military man. Thus, replacement of not left part of imprisonment with the maintenance in disciplinary military unit or restriction on military service as the specified kinds of punishments are applied exclusively to separate categories of military men is inadmissible.

At the same time probably to provide replacement of not left part of the maintenance in disciplinary military unit restriction on military service for the military men serving under the contract. In this case restriction on military service is softer kind of punishment and under condition of departure of one third of term of the maintenance in disciplinary military unit and pravoposlushnom behaviour of the military man the term rest can be replaced by such kind of punishment. In this connection it is expedient to notice the Russian Federation in item 80 UK, that punishment in the form of the maintenance in disciplinary military unit can replace court with softer kind of punishment in the form of restriction on military service.

In the literature the various points of view concerning application of the penalty as imprisonment replacement with softer kind of punishment express. In J.M.Tkachevsky's this occasion notices, that the penalty at considered replacement is inapplicable: such replacement would be an actual payoff from serving of not left part of term of punishments.

Replacement of any urgent punishment should be carried out by other urgent punishment with a view of continuation corrective процесса1. Also considers also O.V.Konkina specifying what to replace imprisonment by the penalty does not follow, as the penalty is disposable punishment and does not assume realisation of process of correction [373 [374]. M.M.Nurmiev who believes adheres to other point of view, that any punishment to some extent assumes corrective influence on condemned without dependence from duration of application and consequently represents possible penalty use as commutation [375]. In our opinion the court should have the right to use such potentially possible kind of punishment as the penalty. Than it is more at court of kinds of punishment for realisation of considered commutation by that means of an individualization of application of the specified commutation taking into account the person and behaviour condemned is more widely used.

In practical activities of vessels the penalty as commutation as item 80 UK the Russian Federation, as a rule, is not applied. Probably, it is connected with certain complexities in calculation of this softer kind of punishment in relation to imprisonment and other kinds of punishments. In the operating criminal legislation there is no the norm, allowing to correlate the size of the penalty with certain term of imprisonment. According to K.V.Mihajlova at realisation of replacement of not left part of punishment on softer kind of punishment in the form of the penalty, the size of again appointed punishment cannot be counted by the rules fixed in item 71 UK the Russian Federation with reference to partial or full cumulative sentence under cumulative offences and cumulative sentences, and therefore it is possible to suggest to be guided by a percentage parity of replaced punishment and its that depending on maximum sizes that and other punishment replacing depending on the maximum sizes. For example, if the penal term constitutes 20 years of imprisonment, and not left part 3 years three years of imprisonment from 20 years are constituted by 15 %, hence, the size of the penalty appointed again also should constitute 15 % from its maximum size. According to ch. 2 items 46 UK the Russian Federation, the penalty are established at the rate from five thousand to five millions roubles or at a rate of wages or other income condemned for the period from two weeks till five years, therefore 15 % from the maximum size of the penalty, i.e. from five millions roubles, constitutes 750 thousand roubles [376]. Obviously given calculation can be is taken for a basis at application by court of the penalty as commutation concerning condemned which have possibility to carry out the given payments in the form of the penalty.

Obligatory works owing to their short-term character hardly probable are expedient for appointing instead of not left part of such punishments, as the maintenance in disciplinary military unit, forced hard labour and imprisonment. The maximum punishment in the form of obligatory works constitutes 480 hours and not over 4 hours per day that can constitute 4 months of obligatory works. In case of malicious evasion condemned from serving of obligatory works they are replaced with imprisonment, at the rate of eight hours of obligatory works for one day of imprisonment, i.e. in case of maximum the size of 480 hours is replaced with two months of forced hard labour or imprisonment. Nevertheless, in France, England and the Netherlands to annually adult offenders it is applied about 30000 judicial sanctions on serving of such punishments as a punishment principal view, and also as replacement short-term prison заключения1. Thus, replacement of forced hard labour or imprisonment for obligatory works looks disproportionately soft, but to use it in relation to condemned, having the small not left part of punishment, it is obviously possible.

As well as obligatory works, correctional labour concern the punishments which have been not connected with isolation condemned from society, and are left condemned in the places defined by local government in coordination with criminally-executive inspections FSIN of Russia, but around a place of its residence. Correctional labour is established for the term from two months till two years. The given kind of punishment does not bring any additional restrictions in comparison with forced hard labour or imprisonment that allows to appoint them in a replacement procedure of not left part of punishment softer kind of punishment. In action UK RSFSR 1960 imprisonment was replaced with correctional labour more often. Obviously given replacement most approaches to the persons, leaving imprisonment. Now courts, as a rule, carry out commutation also correctional labour. According to Management of the organisation of execution of the punishments which have been not connected with isolation condemned from society (UOINIO) FSIN of Russia in 2012 total condemned, which correctional labour, as application of item 80 UK the Russian Federation has been appointed, has constituted 4927 persons that constitutes 6,7 % from total condemned to the correctional labour, put on the account in UII in 2012 - 73194 persons.

According to ч.5 item 46 UK the Russian Federation in case of malicious evasion of the penalty condemned from payment appointed as the basic punishment, except for cases of an infliction of penalty in the size, estimated starting with [377 [378] sizes, multiple cost of a subject or the sum of commercial payoff or a bribe, the penalty is replaced with other punishment, except for imprisonment. In that case the penalty can be replaced with correctional labour. At the same time, there would be justified an application to positively characterised condemned to correctional labour of incentive institute of replacement of not left part of punishment by softer kind of punishment in the form of the penalty [379]. It is necessary to notice, that ugolovnoispolnitelnoe the legislation of Ukraine provides as an encouragement measure to condemned to correctional labour representation in court of materials on condemned on replacement of not left part of punishment with softer kind of punishment in the form of the penalty (ch. 2 items 46 Wick of Ukraine).

Whether on materials of our research on a question «it is necessary to provide in the law possibility of application by vessels, under petition UII, to positively characterised condemned to correctional labour of replacement of not left part of punishment by its softer kind in the form of the penalty?» 72,6 % of employees of criminally-executive inspections

Have answered positively, 23,2 % - are negative, and 4,2 % - were at a loss to answer. The given incentive institute should be applied after actual departure condemned not less than half of penal term in connection with the importance of this encouragement and necessity of studying of the person of the punishment condemned in departure.

Thus punishment in the form of imprisonment is inexpedient to apply commutation by the penalty to condemned to which has been replaced softer by a kind of punishment in the form of correctional labour as item 80 UK the Russian Federation as to them this incentive institute has already been applied. Thus, for the purpose of stimulation and increase of efficiency of enduring the punishment it is expedient to provide to positively characterised condemned to correctional labour commutation by softer kind of punishment in the form of the penalty. The above-stated positions are necessary for providing in ch. 3 items 80 UK the Russian Federation (the Appendix № 45 see).

As application of institute of commutation by softer kind of punishment punishment in a kind freedom restriction can be appointed. This punishment for the term from 2 months till 4 years as the basic punishment is appointed and in case of malicious evasion from serving of restriction of freedom is replaced at the rate of one day of forced hard labour or imprisonment for two days of restriction of freedom. According to UOINIO FSIN Russia in 2012 the quantity condemned by which restriction of freedom as application of item 80 UK the Russian Federation has been appointed, has constituted 958 persons (3,6 % from total condemned to restriction of freedom, put on the account in UII in 2012 - 26464 persons).

At commutation by softer kind of punishment the court can select such kind of punishment, as arrest though now this kind of punishment is not applied, in connection with absence of lock-ups. Arrest consists in the maintenance condemned in the conditions of strict isolation from a society and is established for the term from one about six months (ch. 1 items 54 UK the Russian Federation). Arrest cannot be appointed to pregnant women and the women, having children is elderly till fourteen years, and also to the persons who have not reached by the moment removal by court of a sentence shestnadtsatiletnego of age.

Certainly replacement of imprisonment with arrest does not contradict the criminal legislation, but we believe, that at equal term arrest will be more severe kind of punishment because it agree ch. 2 items 69 Wick the Russian Federation on condemned to arrest extend the conditions of the maintenance established for condemned to imprisonment, serving time in the conditions of the general mode in prison. Replacement of imprisonment with arrest, according to O.V.Konkinoj, does not promote gradual familiarising condemned by a life on freedom [380]. In our opinion, such replacement of not left part of punishment with arrest cannot be recognised by incentive and stimulating pravoposlushnoe behaviour condemned, that contradicts the maintenance of the specified incentive institute. Therefore to apply it as replacement of imprisonment or forced hard labour it is inexpedient, including in connection with its brevity.

Replacement of not left part of term of the maintenance in disciplinary military unit other softer kind of punishment in the form of arrest is not applied because to carry out the given replacement is inexpedient for the same reasons, as in case of imprisonment replacement with similar punishment. Also it is represented impossible concerning the given category condemned to replace punishment by the penalty, in connection with age features condemned (the military men, passing military service on an appeal, have youth age), absence, as a rule, trades and formations, and also the heavy financial position which has developed in connection with enduring the punishment.

Punishment in the form of the maintenance in disciplinary military unit, agrees ch. 1 item 55 UK the Russian Federation, is applied to the military men, passing military service on an appeal, and also the military men, passing military service under the contract on military posts of the private soldier and serzhantskogo structure if they at the moment of removal by court of a sentence have not served statutory service life on an appeal. In this connection application of punishment in the form of correctional labour to the specified persons, agrees ch. 5 items 50 UK the Russian Federation, are forbidden. Application to them of punishments in the form of obligatory works and freedom restriction (ch is similarly forbidden also. 4 items 49 UK the Russian Federation and ch. 5 items 53 UK the Russian Federation). To the military men, leaving the maintenance in disciplinary military unit, it is possible to apply commutation as item 80 UK the Russian Federation only concerning the persons serving under the contract.

Thus, considering specificity of subjects to which punishment in the form of the maintenance in disciplinary military unit can be applied, it is necessary to specify, that the maintenance in disciplinary military unit can be replaced with restriction on military service only concerning the condemned military men, passing military service under the contract.

At replacement of not left part of punishment the court can select any, softer kind of punishment according to the list specified in article 44 UK the Russian Federation where enter as the basic, and additional kinds of punishments. Deprivation special, military or an honorary title, a class rank and the state awards as additional punishment, attracts loss of all rights, privileges and advantages which are connected with this rank, with a rank or the award that mentions property rights of the condemned. The role of additional punishment consists in addition and strengthening of influence of a penalty, application of restriction on that part of a legal status condemned which was not mentioned by the basic punishment. Against imprisonment replacement with this kind of punishment A.S.Mihlin who considers fairly expresses, that commutation is encouragement condemned and should provide one punishment, - the core, instead of two - the basic and additional [381]. Therefore with the above-stated auxiliary view of punishment to replace not left part of punishment in the form of imprisonment it is inexpedient. As a whole additional punishments cannot be used alternatively to imprisonment at the decision of a question on kinds of replacing punishments.

Also, in our opinion, it is not necessary to replace imprisonment by such softer kind of punishment as the debaring to occupy certain posts or to be engaged in certain activity (it is applied as the basic and additional kinds of punishment). As condemned this punishment has not been appointed as additional to imprisonment, the court means has not counted necessary to use the given kind of punishment. Besides, commutation is carried out on stages of its execution, instead of appointment, therefore court analyzes data about the person condemned and its behaviour during imprisonment serving. In this connection to replace punishment in the form of imprisonment by softer kind of punishment in the form of the debaring to occupy certain posts or to be engaged in certain activity also it is represented inexpedient.

In connection with the above-stated it is believed possible forced hard labour to replace as item 80 UK the Russian Federation with following kinds of punishments: the penalty, obligatory works, correctional labour or freedom restriction. Accordingly the maintenance in disciplinary military unit it is expedient to replace with restriction on military service only concerning the condemned military men, passing military service under the contract. Imprisonment it is obviously possible to replace with such, softer kinds of punishment as the penalty, obligatory works, correctional labour, restriction of freedom or forced hard labour. As we already marked, concerning condemned to correctional labour it is necessary to provide replacement of not left part of punishment with softer kind of punishment in the form of the penalty, for an exception of persons by which correctional labour as application of item 80 UK the Russian Federation (see the Appendix № 45) is appointed.

According to ch. 3.1 items 175 Wick the Russian Federation concerning positively characterised condemned to which not left part of punishment can be replaced by softer kind of punishment, establishment or the body executing punishment, bring in court representation about replacement of not left part of punishment with softer kind of punishment. In representation about replacement of not left part of punishment with softer kind of punishment data about behaviour condemned, its relation to study and work during enduring the punishment, about the relation condemned to perfect act should contain. The basis for preparation and the taking to court of such representation is the decision of administration of establishments and the bodies executing punishment, about expediency of application to condemned replacements of not left part of punishment with softer kind of the punishment, accepted on commission IU.

At the same time condemned according to definition of the Constitutional court (KS) the Russian Federation from October, 20th, 2005 № 388 «Under the complaint of citizen Yeliseyev Alexey Jurevicha to infringement of its constitutional laws of the item of item 2 and 5 ч.1 item 399 UPK the Russian Federation and ch. 3 items 175 Wick the Russian Federation», have the right to address in court with the petition for replacement of not left part of punishment with softer kind of punishment and the court is obliged to consider such petition in essence in a statutory order. According to item 12 of the Decision of Plenum of the Supreme Court of the Russian Federation from April, 21st, 2009 № 8 «About judiciary practice of is conditional-preschedule clearing of enduring the punishment, replacement of not left part of punishment with softer kind of punishment» positions of a part of 3 articles 175 Wick the Russian Federations do not interfere with condemned, its legal representative and under their commission to the lawyer to address in court with the petition for replacement of not left part of punishment with softer kind of punishment, and assume a court duty to consider such petition in essence in a statutory order. Likely in this connection the legislator the Federal act № 208-FZ has specified from 01.12.2012 in ch. 3 items 175 Wick the Russian Federation that condemned to which not left part of punishment can be replaced by softer kind of punishment, and also its lawyer (legal representative) has the right to address in court with the petition for replacement of not left part of punishment with softer kind of punishment.

Regarding 4 items 113 Wick by the Russian Federation «the Measures of the encouragement applied to condemned to imprisonment» it is noticed, that positively characterised condemned can be presented to replacement of not left part of punishment with softer kind of punishment after actual departure of the part of the penal term specified in the law. Nevertheless the Federal act № 161-FZ from article 113 Wick the Russian Federation had been excluded from 08.12.2003 position about is conditional-preschedule clearing because UDO is interbranch incentive institute, instead of a measure of encouragement and aspiration to UDO as the legitimate interest condemned, allows it to address in court directly, without consideration of this question by commission IU. Similarly and replacement of not left part of punishment with softer kind of punishment does not concern encouragement measures, and is the interbranch incentive institute including norms criminal, criminally-executive and the criminal procedure. At the given replacement the encouraged condemned continue to leave absolutely other punishment under criminal law. Therefore the norm ч.4 item 113 Wick actually mismatches the Russian Federation ч.3 item 175 Wick the Russian Federation defining an order of the reference condemned with petition in court about replacement of not left part of punishment by softer kind of punishment, and ч.3.1. Item 175 Wick the Russian Federation as the fact of representation condemned to the specified commutation cannot concerns encouragement because the court can give up after giving of representation of administration IU condemned in application of this incentive institute.

Some scientists (for example, E.M.Abdullin, I.A.Tarhanov) consider, that replacement of not left part of punishment with softer kind of punishment is a measure of encouragement of positive behaviour condemned in enduring the punishment [382]. It is necessary to notice, that measures of encouragement condemned narrower concept which include granting of those kinds moral or material benefits which do not change a legal status condemned, and application of measures of encouragement is carried out only by administration of establishments and the bodies executing punishments under criminal law. To encouragement measures, the norms established ч.1,2 item 113 and item 134 Wick by the Russian Federation and defining the exhaustive list of measures of encouragement to condemned to imprisonment [383 [384] for example concern. The encouragement provided by incentive institute, wider concept which essentially changes a legal status of the condemned. Thus, replacement of not left part of punishment with softer kind of punishment does not concern encouragement measures, and is the incentive institute changing a legal status condemned and applied court.

In this connection it is necessary to exclude from item 113 Wick the Russian Federation «the Measures of the encouragement applied to condemned to imprisonment» a part the fourth, regulating replacement of not left part of punishment with softer kind of punishment.

According to summary statistical data of judicial department at the Supreme Court of the Russian Federation about activity of federal courts of the general jurisdiction in 2011 vessels from 16991 affairs considered by vessels on imprisonment replacement with its softer kind it has been given up in satisfaction of the specified commutation 10891 (64,1 %) to representation and the petition, it is satisfied accordingly 6100 (35,9 %) by the such

To representations and petitions, including concerning minors only шести1. The analysis of 97 decisions of regional vessels about refusal condemned in replacement of not left part of punishment with softer kind of punishment from various regions of Russia, and also the materials received from territorial bodies FSIN of Russia at research of problems of perfection of incentive institutes, applied in IU UIS in a current 2012 and has shown 2013, that principal causes of refusal of vessels in replacement of not left part of punishment with softer kind of punishment is the following: condemned earlier it was released conditionally-ahead of schedule and again has made deliberate or grave crime; the court does not have confidence, that in replacement of not left part of punishment with softer kind of punishment it will not commit again a crime; in commutation it is given up in connection with previous conviction presence; social justice is not reached; absence at court of confidence of correction; By court it is not established the sufficient data set, specifying in correction of the condemned; the punishment purpose is not reached; unstable behaviour for all period of enduring the punishment; recognised fault only formally (during session of the court fault did not recognise, further in an enduring the punishment place has written the statement for confession and repentance); it is not undertaken exhaustive measures on repayment of claims.

Nevertheless in item 6 of the decision of Plenum of the Supreme Court of the Russian Federation from April, 21st, 2009 № 8 «About judiciary practice of is conditional-preschedule clearing of enduring the punishment, replacement of not left part of punishment with softer kind of punishment» it is noticed, that courts have not the right to give up in replacement of not left part of punishment with softer kind of punishment on the bases which have been not specified in the law, such as criminal record presence, 1 condemned fault, short duration of its stay in one of correctional facilities etc. Concerning repayment of claims it is necessary to note softness of the appointed punishment, non-recognition, what not all condemned are employed, and the condemned, undertaking efforts on their repayment, not in forces completely to extinguish such claims because of small earnings.

In default vessels in replacement of not left part of punishment with softer kind of punishment repeated entering into court of corresponding representation can take place not earlier than after six months from the date of court decision removal about refusal (ch. 10 items 175 Wick the Russian Federation). Therefore all procedure of consideration of a question on expediency of representation condemned to replacement of not left part of punishment with softer kind of punishment should be passed anew.

In connection with the above-stated it is represented expedient by analogy to the decision of questions about UDO to assign consideration of questions on commutation by softer kind of punishment on «committees concerning parole condemned in subjects of the Russian Federation», as independent bodies on preliminary consideration of petitions and statements on parole condemned and to entering of recommendations about expediency of the given kind of clearing in court for decision-making. Accordingly at giving condemned petitions for commutation as item 80 UK the Russian Federation administration IU should not later than in 10 days after giving of such petition to consider and approve the characteristic on condemned on commission IU and then the specified materials to direct simultaneously to court and in committee concerning parole condemned in subjects of the Russian Federation. At a direction administration IU in representation court about replacement of not left part of punishment with softer kind of punishment concerning positively characterised condemned according to ch. 3.1 items 175 Wick the Russian Federation also is obviously necessary to direct corresponding documents simultaneously to court and in committee concerning parole condemned in subjects of the Russian Federation.

According to materials of our research, on a question «As you think, what changes are necessary for providing in the legislation for increase of efficiency of institute of commutation by its softer kind concerning condemned to imprisonment?» 37,5 % of judges and 27,5 % of workers scientific and educational institutions FSIN of Russia have specified, that it is necessary to apply commutation by its softer kind at absence at the condemned operating collectings for infringement of a mode of the maintenance; accordingly 30,3 % and 18,3 % of respondents believe, that it is necessary to apply the specified commutation only to condemned, serving time in the facilitated conditions of enduring the punishment; 25,3 % and 45,3 % interrogated consider, that it is necessary to lower obligatory term of departure condemned punishments for commutation application by its softer kind in comparison with UDO in connection with identical terms of their application; 6,9 % and 8,9 % - have answered other, namely: to apply the given commutation in the absence of collectings for all period of enduring the punishment; depending on the person of the condemned; changes as experience shows are not necessary, that commutation by softer kind does not give a positive effect, etc. (the Appendix № 10,11 see).

Collecting presence testifies that the condemned is characterised negatively during enduring the punishment, therefore in practical activities it is accepted to represent to court a negative testimonial from of administration IU on condemned, having any not removed or outstanding collecting as on degree of correction it is negatively characterised. In this connection by analogy to the offered changes in ч.2 Wick the Russian Federation, it is necessary to provide item 175 in ch. 3 and ch. 3.1. Item 175 Wick the Russian Federation, that compulsory condition of the specified commutation is absence at condemned operating collectings for infringement of the established order of enduring the punishment with the account ch. 8 items 117 Wick the Russian Federation.

Considering a question on kinds of replacement of not left part of punishment by softer kind of punishments, A.S.Mihlin has come to conclusion, that, first, both punishments should be quantitatively compared with each other. In - the second, replacing punishment should not mention new spheres of interests condemned which have not been knocked by the punishment appointed on a sentence [385].

Really, it agree ch. 3 items 80 UK the Russian Federation softer kind of punishment are appointed only in the limits established by the criminal law for this kind of punishment even if not left part of imprisonment and exceeds these terms. For example, the person who has made grave crime, is condemned by six years of imprisonment. After departure of three years by it the court, taking into account behaviour condemned in enduring the punishment, decides to replace the punishment rest (and it is three years of imprisonment) with correctional labour. But according to ch. 2 items 50 UK the Russian Federation correctional labour cannot be appointed to term more than for two years. Theoretically in the given situation the law will be not not contradicted by the decree to replace the imprisonments which have remained not left three year not with correctional labour, and freedom restriction. Thus the court can appoint the given kind of punishment within four years (ch. 2 items 53 UK the Russian Federation). In practical activities courts replace punishment so that term of replacing punishment did not exceed duration of not left part of the penal term. So, for example, not left part of term of the imprisonment, equal to one year, it is possible to replace one year of correctional labour, but no more.

Besides it, new punishment should reduce level of restrictions of the rights and freedom condemned which were mentioned by punishment in the form of imprisonment, forced hard labour or the maintenance in disciplinary military unit. Otherwise commutation will not facilitate, and will burden a legal status condemned, that will not correspond to the maintenance of incentive institute of commutation.

However in case of fulfilment of a new crime during serving of softer kind of punishment to the punishment appointed for it only not left part of new punishment, instead of that part of imprisonment which remained not left in full or in part joins. Besides, if condemned not left part of punishment has been replaced one year and 6 months of correctional labour, in case of malicious evasion condemned from enduring the punishment in the form of correctional labour, court, according to ch. 4 items 50 UK the Russian Federation, can replace neotbytoe at the rate of one day of imprisonment for three days of correctional labour. Thus, one and a half year of correctional labour can replace with 6 months of imprisonment condemned only, and condemned the Russian Federation comes back in a corrective colony with term of imprisonment much less, than before application of item 80 UK.

It is represented, that this technique leads actually to reduction of not left part of the penal term to malicious infringers of an order of enduring the punishment and as a whole does not promote their correction. The similar situation can will develop and in case of the malicious evasion of the restriction of freedom appointed as application of item 80 UK the Russian Federation condemned from serving as it agree ch. 5 items 53 UK the Russian Federation court can replace not left part of punishment with forced hard labour or imprisonment at the rate of one day of forced hard labour for two days of restriction of freedom or one day of imprisonment for two days of restriction of freedom.

In this connection it is expedient ch. 4 items 50 UK the Russian Federation to add with the offer that in case of malicious evasion condemned from the serving of correctional labour appointed as application of article 80 UK the Russian Federation, the court can replace not left part of punishment with forced hard labour or imprisonment at the rate of one day of forced hard labour or one day of imprisonment for one day of correctional labour. Accordingly ch. 5. The Russian Federation also it is necessary to add item 53 UK with the offer that in case of the malicious evasion of the restriction of freedom appointed as a principal view of punishment and as application of article 80 UK the Russian Federation condemned from serving, the court can replace not left part of punishment with forced hard labour or imprisonment at the rate of one day of forced hard labour or one day of imprisonment for one day of restriction of freedom (see the Appendix № 45).

Thus, the problems of an order of application of incentive institutes of is conditional-preschedule clearing considered in the given paragraph from enduring the punishment and replacement of not left part of punishment with softer kind of punishment, and also a way of their perfection allows to formulate corresponding conclusions and offers on current legislation change.

Conclusions and offers under chapter 3:

The analysis of questions of the legal nature, the bases and order of application of incentive institutes of is conditional-preschedule clearing of enduring the punishment and replacement of not left part of punishment with softer kind of punishment allows to draw following conclusions and offers:

- UDO by the legal nature is the complex interbranch incentive institute realising a legitimate interest condemned on parole from real enduring the punishment and directed on positive stimulation pravoposlushnogo of behaviour condemned. Incentive institute UDO can be carried to a final stage of progressive system of execution of punishments.

- UDO is not the right, and concerns a legitimate interest condemned which is realised in the form of application of the rule of law from the party pravoprimenitelja.

- At UDO the essence and stability of a sentence is not mentioned, but punishment execution is corrected from real punishment in conditional release.

- Replacement of not left part of punishment with softer kind of punishment by the legal nature is the complex, interbranch, incentive institute realising function of clearing of enduring the punishment by replacement of this punishment by softer kind of punishment and stimulating pravoposlushnoe behaviour condemned. The given incentive institute concerns the important element of progressive system of execution of punishments.

- It is represented expedient to lower obligatory term for application of incentive institute of replacement of not left part of punishment by softer kind of punishment that liquidates a competition between institutes UDO and commutations, will promote observance of a principle of sequence, course of application of the specified incentive institutes and increase in a demand of institute of commutation.

- Criteria of application of incentive institutes UDO and commutation are closely connected with criteria of an estimation of behaviour condemned which are the major means of increase of efficiency of corrective influence. Five criteria of an estimation of behaviour condemned which Wick is offered to provide in item 9 the Russian Federation are defined. The given criteria are necessary for applying as to the decision of questions of application UDO, replacement of not left part of punishment with softer kind of punishment, and other incentive institutes changing a legal status of the condemned.

- Taking into account domestic and foreign experience of an order of application of parole condemned and transparency maintenance in application of incentive institutes UDO and commutations as item 80 UK the Russian Federation is offered to create committees concerning parole condemned in subjects of the Russian Federation, as independent bodies on preliminary consideration of petitions and statements on parole condemned and to entering of recommendations about expediency of the given kind of clearing in court for decision-making.

- Replacement of not left part of punishment with softer kind of punishment is interbranch incentive institute, instead of an encouragement measure and consequently the part 4 of item 113 the Russian Federation is necessary for excluding Wick.

- It is offered to assign to employees of criminally-executive inspections FSIN of Russia function under the control over behaviour uslovnodosrochno released of the places of confinement, and also rendering of the social help by it, that can lead to decrease in level of recurrent and repeated criminality. Thus accordingly it is necessary to increase regular number of employees UII for realisation of this function.

In connection with the above-stated it is offered to make following changes and additions in legislative and departmental normativnopravovye certificates:

1) to formulate the first offer ч.3 item 79 UK the Russian Federation in the following edition: «Is conditional-preschedule clearing can be applied only after actual departure condemned to the maintenance in disciplinary military unit, to forced hard labour or imprisonment:»;

2) to add item 79 UK the Russian Federation with a part 3.1. The following maintenance:

«To condemned to correctional labour, and also to restriction of freedom and the debaring to occupy certain posts or to be engaged in the certain activity, the punishments appointed as principal views, is conditional-preschedule clearing only after actual departure by them not less than half of penal term established by court can be applied. Is conditional-preschedule clearing is not applied to condemned to correctional labour, to restriction of freedom and the debaring to occupy certain posts or to be engaged in certain activity by which the specified kinds of punishments as application of article 80 of the present Code are appointed.»;

3) the name of article 9 Wick the Russian Federation to state in the following edition: «Correction condemned, its fixed assets and criteria of an estimation of their behaviour» and also to add above-stated article Wick with the Russian Federation a part 4 following maintenances: « Criteria of an estimation of behaviour condemned: 1) the basic criterion - observance condemned the established order of enduring the punishment; 2) additional criteria: aspiration condemned to resotsializatsii (a conscientious attitude to work, training, preservation, maintenance or restoration of socially useful communications, participation in educational actions); the relation condemned to psychophysical updating of the person (including performance of the program of psychological correction of the person); the relation condemned to a perfect crime (public repentance and written apologies to the victim, partial or the full indemnification of the caused damage); the relation to treatment condemned, suffering: socially dangerous diseases (a tuberculosis, venereal diseases, an alcoholism, a narcotism, etc.); frustration of sexual preference (pedophilia), not excluding responsibility »;

4) to state the first offer ch. 1 items 79 UK the Russian Federation in the following edition: «the Person leaving correctional labour, restriction of freedom and the debaring to occupy certain posts or to be engaged in the certain activity, appointed as punishment principal views, the maintenance in disciplinary military unit, forced hard labour or imprisonment comes under to is conditional-preschedule clearing if by court it will be recognised, that it has steady pravoposlushnoe behaviour according to criteria of an estimation of its behaviour in the enduring the punishment, provided by a part of fourth article 9 of the Criminally-executive code of the Russian Federation, and for the correction does not require full serving of the punishment appointed court, and also has compensated harm (in full or in part), caused by a crime, in the size defined by the decree.»;

5) to state the item "in" ч.3 item 79 UK the Russian Federation in the following edition:

«) not less than two thirds of the penal term appointed for especially grave crime, and also two thirds of the penal term, appointed to the person who was earlier conditionally-ahead of schedule exempted if it has been conditionally-parole cancelled on the bases provided by points« and "and" »parts of seventh present article;»;

6) to state the item "g" ч.3 item 79 UK the Russian Federation in the following edition:

«) not less than three quarters of the penal term appointed for crimes against sexual inviolability of minors, and it is equal for heavy and especially the grave crimes connected with illegal circulation of narcotics, psychotropic substances and them prekursorov, for the crimes provided by articles 205, 205.1, 205.2 and 210 present Codes, and also three quarters of the penal term, appointed to the person who was earlier conditionally-ahead of schedule exempted if uslovnodosrochnoe clearing has been cancelled on the bases provided by point« in »parts of seventh present article;»;

7) to add item 79 UK the Russian Federation with a part 8 following maintenances:

«If conditionally-ahead of schedule released behaved faultlessly, and also has compensated harm (in full or in part), caused by a crime the court on representation of the body which is carrying out the control over behaviour conditionally-ahead of schedule released, can enact about cancellation before the duties established for it provided by a part of fifth article 73 of the present Code and about removal with conditionally-ahead of schedule released previous conviction. The duties thus assigned to it can be cancelled after not less half of not left part of punishment and not earlier than a year after is conditional-preschedule clearing»;

8) to Formulate ч.1 item 80 UK the Russian Federation in the following edition: «to the Person, leaving correctional labour, the maintenance in disciplinary military unit, forced hard labour or the imprisonment, compensated harm (in full or in part), caused by a crime, not left part of punishment can be replaced by softer kind of punishment if by court it will be recognised, that condemned has steady pravoposlushnoe behaviour according to criteria of an estimation of its behaviour in the enduring the punishment, provided by a part of fourth article 9 of the Criminally-executive code of the Russian Federation, and the further correction of softer kind of punishment condemned probably in the conditions of serving. Thus the person can be in full or in part released from serving of an auxiliary view of punishment.».

9) to State ch. 2 items 80 UK the Russian Federation in the following edition:

«Not Left part of punishment can be replaced by softer kind of punishment after actual departure condemned to imprisonment for fulfilment:

Crimes of small or average weight - not less the one fourth penal term;

Grave crime - not less than one third of penal term; especially grave crime - not less than half of penal term; crimes against sexual inviolability of minors, and also the crimes provided by article 210 of the present Code, - not less than two thirds of penal term;

Crimes against sexual inviolability of the minors who have not reached chetyrnadtsatiletnego age, - not less than three quarters of the penal term. ».

10) to Add item 80 UK the Russian Federation with a part 2.1. The following maintenance: «not Left part of punishment in the form of correctional labour can be replaced by softer kind of punishment in the form of the penalty after actual departure condemned to correctional labour not less than half of penal term.».

11) to State ч.2 item 175 Wick to the Russian Federation in the following edition: «the Administration of establishment or the body executing punishment not later than in 15 days after giving of the petition condemned about conditional-parole from enduring the punishment, considers and approves the characteristic on condemned, submitted the petition about conditional-parole, on the commission of establishment or the body executing punishment. Then the specified materials go to court and in committee concerning parole of the condemned subjects of the Russian Federation. The specified committee not later than in 15 days after reception of corresponding materials from administration of establishment or the body executing punishment, takes to court the recommendation about expediency of application of is conditional-preschedule clearing.

In the characteristic data about behaviour condemned, its relation to study and work during enduring the punishment, about the relation condemned to perfect act, about compensation of the harm caused by a crime, and also data about conformity of behaviour condemned to criteria of an estimation of its behaviour in the enduring the punishment, 4 articles 9 of the present Code provided by a part, and the administration conclusion about expediency of application of is conditional-preschedule clearing should contain. In the characteristic on the person who is condemned for fulfilment aged is more senior 18 years of a crime against sexual inviolability of the minor who has not reached chetyrnadtsatiletnego age, and it is recognised on the basis of the conclusion of judicial-psychiatric examination by suffering frustration of sexual preference (pedophilia), by not excluding responsibility, data about the forced measures of medical character applied to it, about its relation to treatment should contain also. Simultaneously with the petition such condemned about is conditional-preschedule clearing of enduring the punishment in court the conclusion of its attending physician goes.

Compulsory condition of is conditional-preschedule clearing is absence at condemned operating collectings for infringement of the established order of enduring the punishment taking into account requirements ch. 8 items 117 of the present Code. ».

12) to State ch. 4 items 79 UK the Russian Federation in the following edition: «actually left condemned the penal term in the form of correctional labour, restrictions of freedom and to the debaring to occupy certain posts or to be engaged in the certain activity, appointed as a punishment principal view, and also the specified penal term in the correction centre, the disciplinary military unit or in correctional facility cannot be less than six months».

13) to Add ch. 1 items 399 UPK the Russian Federation (the Order of the permission of the questions connected with execution of sentence) after a word by "court" by words «with participation of the public prosecutor». Accordingly ch. 6 items 399 UPK the Russian Federation where it is noticed, that in session of the court have the right to participate the public prosecutor, - to exclude.

14) to make change in paragraph 5 «methodical recommendations about system use« social lifts »in correctional facilities FSIN of Russia in the conditions of current legislation», approved director FSIN of Russia of 01.04.2011, after words «In commission structure enter:» to add with words: «- the Chief correctional facility (chairman),» and further under the text. Also in the same paragraph after words «representatives of public authorities of the corresponding subject of the Russian Federation and (or) municipal union bodies,» to add with words «- representatives of police of the public safety of area, - representatives of a board of guardians at an educational colony, representatives of bodies and establishments of system of preventive maintenance of neglect and offences of minors of area at discussion of materials on condemned, serving time in educational colonies.» And further under the text.

15) to Formulate ch. 2 items 79 UK the Russian Federation as follows: «Applying conditionally-parole to the person condemned for crimes of small or average weight, the court can assign to it the duties provided by a part of fifth article 73 of the present Code which should them be executed during the remained not left part of punishment. Applying conditionally-parole to the person condemned for heavy and especially grave crimes, the court without fail assigns to it the duties provided by a part of fifth article 73 of the present Code which should them be executed during not left part of punishment. The court has the right to assign on released conditionally-ahead of schedule discharge of duties on observance of conditions of monitoring behind it with use electronic and others means of supervision and the control in the remained not left part of punishment for the term from 2 months till one year inclusive».

16) to State ч.3 item 80 UK the Russian Federation in the following edition:

«At replacement of not left part of punishment in the form of imprisonment the court as softer kind of punishment can select the penalty, obligatory works, correctional labour, freedom restriction, forced hard labour.

At replacement of not left part of punishment in the form of the maintenance in disciplinary military unit the court as softer kind of punishment can select restriction on military service only concerning the condemned military men, passing military service under the contract.

At replacement of not left part of punishment in the form of forced hard labour the court as softer kind of punishment can select the penalty, obligatory works, correctional labour, freedom restriction.

At replacement of not left part of punishment in the form of correctional labour, for an exception of persons by which correctional labour as application of article 80 of the present Code is appointed, the court as softer kind of punishment can select the penalty.

Softer kind of punishment is executed during all term of not left part of punishment, but cannot exceed the limit provided by the present Code for given kinds of punishments. »;

17) to formulate ch. 3. Item 175 Wick the Russian Federation in the following edition:

«Condemned to which not left part of punishment can be replaced by softer kind of punishment, and also its lawyer (legal representative) has the right to address in court with the petition for replacement of not left part of punishment with softer kind of punishment. The petition for replacement of not left part of punishment with softer kind of punishment submits the condemned through administration of establishment or the body executing punishment. The administration of establishment or the body executing punishment not later than in 10 days after giving of the petition condemned about replacement of not left part of punishment with softer kind of punishment considers and approves the characteristic on condemned, submitted the petition for commutation, on the commission of establishment or the body executing punishment. Then the specified materials go to court and in committee concerning parole condemned in subjects of the Russian Federation. The given committee of subjects of the Russian Federation not later than in 15 days after reception of corresponding materials from administration of establishment or the body executing punishment, takes to court the recommendation about expediency of application of replacement of not left part of punishment by softer kind of punishment.

In the characteristic data about behaviour condemned, its relation to study and work during enduring the punishment, about the relation condemned to perfect act, about compensation of the harm caused by a crime (in full or in part), and also about conformity of behaviour condemned to criteria of an estimation of its behaviour in the enduring the punishment, 4 articles 9 of the present Code provided by a part, and the administration conclusion about expediency of application of commutation should contain. In the characteristic on the person who is condemned for fulfilment aged is more senior 18 years of a crime against sexual inviolability of the minor who has not reached

chetyrnadtsatiletnego age, also it is recognised on the basis of the conclusion of judicial-psychiatric examination by suffering frustration of sexual preference (pedophilia), by not excluding responsibility, data about the forced measures of medical character applied to it, about its relation to treatment should contain also. Simultaneously with the petition such condemned about replacement of not left part of punishment with softer kind of punishment in court the conclusion of its attending physician goes.

Compulsory condition of replacement of not left part of punishment by softer kind of punishment is absence at condemned operating collectings for infringement of the established order of enduring the punishment with the account ch. 8 items 117 of the present code »;

18) to formulate ch. 3.1 items 175 Wick the Russian Federation in the following edition:

«The administration of establishment or the body executing punishment, brings in court representation about replacement of not left part of punishment with softer kind of punishment concerning positively characterised condemned and simultaneously directs the specified materials to committee concerning parole condemned in subjects of the Russian Federation. The given committee not later than in 15 days after reception of corresponding materials from administration of establishment or the body executing punishment, takes to court the recommendation about expediency of application of replacement of not left part of punishment by softer kind of punishment. In representation about replacement of not left part of punishment with softer kind of punishment data about behaviour condemned, its relation to study and work during enduring the punishment, about the relation condemned to perfect act and that the condemned has compensated harm (in full or in part), caused by a crime, and also about conformity of behaviour condemned to criteria of an estimation of its behaviour in the enduring the punishment, 4 articles 9 of the present Code provided by a part should contain. In representation about replacement of not left part of punishment with softer kind of punishment by the person which is condemned for fulfilment aged is more senior 18 years of a crime against sexual inviolability of the minor who has not reached chetyrnadtsatiletnego age, and it is recognised on the basis of the conclusion of judicial-psychiatric examination by suffering frustration of sexual preference (pedophilia), by not excluding responsibility, data about the forced measures of medical character applied to it, about its relation to treatment should contain also. Simultaneously with representation on such condemned in court the conclusion of its attending physician goes.

Compulsory condition of replacement of not left part of punishment by softer kind of punishment is absence at condemned operating collectings for infringement of the established order of enduring the punishment with the account ch. 8 items 117 of the present code »;

19) to exclude from item 113 Wick the Russian Federation a part 4;

20) to add ч.4 item 50 UK the Russian Federation with the offer of the following maintenance: «In case of malicious evasion condemned from serving of the correctional labour appointed as application of article 80 of the present Code, the court can replace not left part of punishment with forced hard labour or imprisonment at the rate of one day of forced hard labour or one day of imprisonment for one day of correctional labour.»;

20) to add ч.5. Item 53 UK the Russian Federation the following offer: «In case of the malicious evasion of the restriction of freedom appointed as a principal view of punishment and as application of item 80 of the present Code condemned from serving, the court can replace not left part of punishment with forced hard labour or imprisonment at the rate of one day of forced hard labour or one day of imprisonment for one day of restriction of freedom.».

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A source: Babayan Sergey Lvovich. INCENTIVE INSTITUTES of the CRIMINALLY-EXECUTIVE RIGHT (the THEORY And APPLICATION PRACTICE) the Dissertation on competition of a scientific degree of the doctor of juridical science. Moscow. 2014

More on topic § 3. Practice of application and a perfection way uslovnodosrochnogo clearings of enduring the punishment and replacement of not left part of punishment with softer kind of punishment:

  1. Chapter 3. Is conditional-preschedule clearing of enduring the punishment and replacement of not left part of punishment with softer kind of punishment as interbranch incentive institutes
  2. § 2. The legal nature and the basis of replacement of not left part of punishment by softer kind of punishment
  3. § 2. Conditional stay of execution of punishment and is conditional-parole from enduring the punishment.
  4. § 4. Features of application of the legislation on plurality of crimes at parole from enduring the punishment
  5. the Appendix 21 Parity of number of the persons released from the places of confinement uslovnoyodosrochno or in connection with replacement of imprisonment by softer punishment, and numbers of the amnestied persons
  6. § 2. Perfection of incentive institute of change condemned enduring the punishment conditions
  7. problems of perfection of practice of application of the bases of softening of punishment under criminal law
  8. § 1. Concept, the legal nature and value of incentive institutes of change of conditions of enduring the punishment and change of a kind correctional facility
  9. Chapter 4. Incentive institutes of change of conditions of enduring the punishment and correctional facility kind
  10. § 1. The legal nature and the bases of is conditional-preschedule clearing of enduring the punishment
  11. 2.2. An order, conditions and some problems of execution and enduring the punishment in the form of arrest
  12. Hodzhaliev Saleh Ajsaevich. the Theory and practice of restriction of freedom as punishment kind. The dissertation on competition of a scientific degree of the master of laws. Grozny - < year> 2019,
  13. § 1. Essence of punishment. A punishment under criminal law and criminal liability parity
  14. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  15. the CHAPTER II. Influence of small groups of a negative orientation on execution and enduring the punishment process
  16. «... It is enough to compose novels about crimes with punishments, it is time to write about a crime without any punishment». The novel a "Crime and punishment"
  17. §1. The reasons and conditions of efficiency of influence of groups of a negative orientation on execution and enduring the punishment process
  18. § 3. Legality maintenance at a choice of a kind and the size of administrative punishment as a way of protection of the rights of citizens
  19. § 3. A problem of definition of criteria of classification of the crimes condemned for plurality by kinds correctional facilities and a choice of conditions of enduring the punishment in the form of imprisonment