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the Factors influencing forecasting of efficiency of execution of punishment under criminal law in the form of restriction of freedom

For realisation of effective crime control there is a necessity of planning of precautionary measures of influence on the condemned. In our opinion, kriminologicheskie determinants of decrease in success of forecasting of efficiency of appointment and execution of restriction of freedom can be divided into following groups:

I.

Insufficiency and unauthenticity of available data. This problem is significant efficiency for forecasting of any punishment under criminal law, including freedom restriction. Productivity of the measures directed on counteraction of criminality, is caused by completeness of the information about kriminogennoj to conditions in certain territory, absence of distortions of statistical data.

the Legal prediction is based on data about a criminality condition in certain territory. Information centres of law-enforcement bodies give data on quantity, dynamics, structure of criminality depending on object of an encroachment and social danger degree, and also about the persons who have committed crimes. These data form a basis on which is under construction kriminologichesky the forecast.

For a successful legal prediction the data given by Judicial department at the Supreme Court of the Russian Federation also are used: the statistics characterising a kind and degree of the social danger of acts, which steels a proceeding occasion; an is social-demographic portrait of the persons committing crimes; kinds of punishments, to it appointed.

Besides, it is necessary to pay attention to the information containing in reports on results and the basic directions of activity of Federal service of execution of punishments. For example, about number the person, leaving a concrete kind of punishment; the means used for the effective decision of problems, assigned to these punishments; about the supplementary measures accepted for further successful resotsializatsii of the condemned.

Despite presence of some the sources giving data, used for kriminologicheskogo forecasting, the problem of insufficiency or unauthenticity of data remains unresolved. It is influenced by some factors:

A.Latentnost of crimes. In Russia law enforcement bodies do not consider struggle against this phenomenon as a priority, do not provide its decision in the various programs directed on strengthening of crime control, and measures taken at times on decrease in level of the non-detected delinquency have incidental, fragmentary character of time campaigns 1 .

There is a set of the factors influencing on latentnost of crimes. One of them is absence of understanding of degree of the social danger of act and its comprehension as crimes. For example, street fight (hooliganism), drawing of a beating, illegal manufacture of abortion and some other crimes. Besides, there are offences which do not have witnesses, or they do not declare themselves. In many respects it is caused by absence of the remedial mechanism of maintenance of safety of the persons who are promoting justice. As a result, when the persons who have made an offence, induce not to inform the information on a crime in law enforcement bodies

! Kriventsov P. A. Latent crime in Russia: kriminologicheskoe research: dis. kand.jurid. Sciences. - M, 2014. - With. 4.

witnesses and victims, the last feel the vulnerability from threats and intimidation [127] .

Also it is necessary to note a number of the reasons connected with level of professional sense of justice of employees of law enforcement bodies. Latentnost some number of crimes it is connected with unwillingness of these persons to carry out the duties, with a low professional standard, with existing «palochnoj system», with corruption displays. Besides it, negative influence on an overall performance of employees of law enforcement bodies is rendered by the big congestion which interferes with appropriate discharge of duties, and also insufficient material resources and technical security.

determinantoj latentnosti crimes mistrust of the population in relation to employees of law-enforcement system is Following. Some persons who were in the past victims or witnesses of an offence, made by workers of bodies of protection of the law and order, are afraid or do not trust them. Formation of the relation to employees of law-enforcement system also is connected by that citizens observe cases, in which persons, committed crimes, remain unpunished. This factor correlates with other-aspiration to "understand" with such criminal own forces.

Besides it, it is necessary to consider such reason latentnosti, as unwillingness of publicity of event of crime (for example, at rape or family conflicts, a beating, tortures). Or if the victim also made illegal acts.

Productivity kriminologicheskogo forecasting

efficiency of punishments could raise essentially under condition of construction of forecasts on the basis of the data characterised by completeness and objectivity. For example, if the prediction occurs to the account of data about
latent crimes. Hence, the significant factor promoting the prevention of criminality, presence of full and authentic data is at registration and the crime reporting.

B.Otsutstvie of the account of regional features of criminal activity. For formation as much as possible exact kriminologicheskogo the forecast of efficiency of punishment it is necessary to consider all factors influencing criminality. Thus, the legal prediction should include dynamics of change of a population of region, it polovozrastnoj and national structure, distribution of inhabitants in borders of city and rural settlements, indicators internal and an external migration [128] .

In the report of territorial body of Federal service of the state statistics on the Chechen Republic «­ Sotsialnoekonomichesky position of the Chechen Republic in January - February, 2018» corresponding data are resulted. So, on a tentative estimation, the population for February, 1st, 2018 has constituted 1439089 persons. The number of inhabitants of republic has increased in comparison with 2017 on 22,5 thousand persons or on 1, 6 %. The Increase in population can be considered as the factor influencing quantity of made crimes that should be considered together with data about employment, formation and level of incomes of inhabitants. In January, 2018 the volume of monetary incomes of the population in the Chechen Republic has constituted 22950,3 million roubles and was reduced to 8,1 % in comparison with the corresponding period

previous year. The monthly average added wages of workers of the organisations in January, 2018 have constituted 23806,7 roubles and have increased in comparison with the corresponding period of last year by 15,4 %. The monthly average wages in November, 2016 have constituted 22646, 2 roubles, in January - November, 2016-22051, 1 roubles and have increased on
to comparison with the corresponding period of 2015 by 1, 2 % [129] . In January, 2018 a population monetary outlay has constituted 18293,7 million roubles and 2017 (20577,8 million) [130] were reduced to 11,1 % in comparison with the similar period.

Besides the considered indicators, for successful forecasting it is necessary to address to statistical data about crimes for the last years. So, in January - December, 2016 3723 crimes are registered, that on 8, 7 % it is more in comparison with the corresponding period of previous year. From the general number of the registered crimes 916 it is carried to heavy and especially heavy [131] .

Thus, at increase in a population at 1, 4 % growth of number of crimes has constituted 8, 7 % (in 2015 their number has constituted 3425). Despite increase of indicators of incomes (including wages) on 3, 1 %, it is not necessary to speak about improvement of well-being of citizens as the rate of inflation in 2016 has constituted 5, 4 % [132] . Relative density heavy and especially grave crimes has increased about 21, 8 % (in 2015) to 24, 6 % (in 2016). The number especially grave crimes has increased with 159 to 192 (by 20,8 %) [133] . The number of the registered crimes connected with a drug trafficking, in 2016 has increased by 0,7 % and has constituted 697 [134] .

In the report of territorial body of Federal service of the state statistics on the Chechen Republic «it is social ­
an economic situation of the Chechen Republic in January - December, 2016» similar indicators not only at region level, but also at level of municipal areas and city districts of the Chechen Republic are considered. Such statistics necessarily should be considered by the researchers who are carrying out kriminologicheskoe forecasting.

Among the problems connected with application of restriction of freedom, there are complexities both the general character, and the complexities caused by regional features. They are caused by distortion of data on level, dynamics, criminality structure in certain territory. However distortion of data from the authorised persons in some cases is caused by that the information on a considerable quantity of crimes negatively influences authority of law enforcement bodies and all criminally-executive system. Especially it concerns undetected crimes. Negative consequences of such hushing up are impunity of criminals, and also that possibility to avoid the criminal liability and infringement of a principle of inevitability of punishment is shown to other persons. It determines criminality growth in the Chechen Republic therefore conditions which and without that are difficult worsen kriminogennaja.

the Factors influencing crime wave, and, hence, and on efficiency of execution and appointment of punishments, are ethnic, religious, economic, social, psychological, viktimologicheskie, and also other reasons which create barriers to collecting of the objective information on made crimes and interfere with their investigation 1 . These features shown at regional level, can create complexities for effective interaction of the population with employees of law enforcement bodies.

Especially it concerns the citizens dividing ideas of religious extremism [135] .

II. Imperfection of positions of the legislation which causes complexities of appointment and execution of punishment in the form of freedom restriction (some problems connected with the formulation of rules of law, have been considered in chapter 1 of the present research, others - will be analysed in the subsequent paragraphs). Modernisation of the Russian criminally-executive system is directed on some question decision. For example, more frequent appointment and application of the measures alternative to isolation from a society, increase of efficiency of their execution. One of the most perspective measures freedom restriction sees.

Researchers notice, that in standard instructions UK the Russian Federation and Wick the Russian Federations about punishment and execution of restriction of freedom are available following lacks:

) the retaliatory maintenance of punishment under criminal law in the form of freedom restriction as a whole mismatches its place in system of punishments under criminal law;

) insufficiency of volume of restrictions, legal duties for achievement of the purposes of punishment;

) rapprochement of institute of restriction of freedom with institute of probation and with administrative supervision [136] .

Besides, with scientists are allocated and following blanks in the legislation:

- in the maintenance of institute of restriction of freedom there are no legal restrictions condemned, characteristic as a whole for punishments under criminal law;

- absence of possibility of application of restriction of freedom to the persons who do not have a constant residence;

- a legal regulation of restrictions which are provided ch. 1 item 53 UK the Russian Federation, is insufficient [137] .

It is necessary to notice, that presence specified above lacks of legislatively-legal regulation of application of punishment in the form of freedom restriction complicates work of courts of justice at appointment of the given punishment. It proves to be true the analysis pravoprimenitelnoj experts in the country.

In the course of realisation of restriction of freedom actually arise a certain sort of a problem and the disputable moments on which, from our point of view, it is necessary to pay special attention.

1. An interdiction for stay condemned out of the house during established time of days. Courts in practice often establish for condemned as restriction a duty to be in a place of the residence or stay during the period with 22. 00 to 6. 00. Meanwhile there is a natural question on how check of observance of the given interdiction as, it agree ch is carried out. 2 items 60 Wick, inspector UII has no right to visit dwelling condemned at night. From similar position many the inspector try to find an exit by means of phone call to condemned home, thereby confirming its finding on a residence at the appointed time [138] . But also this way not always happens effective as some condemned, aspiring to evade from supervision of the inspector, do not pay a telecommunication service and thus home telephone number switching-off achieve, other condemned refer that night calls break rest of their minor children. For increase of efficiency of the control for condemned, serving time in the form of imprisonment, electronic bracelets can
be used also. Problems of application of these means of tracking will be considered more low.

2. An interdiction for visiting of certain places and actions. It is necessary to notice, that the order of definition of the given places and actions legislatively in no way is not fixed. The recommendation Is obviously important established in the Decision of Plenum of the Supreme Court of the Russian Federation from 22.12.2015 ¹ 58 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» [139] to vessels unequivocally, accurately, in details to define places and actions which are under an interdiction for everyone concrete condemned, instead of being limited in the adjudication only literal endurances from positions of item 53 UK the Russian Federation.

3. The duty condemned to appear in UII for registration. The basic complexity at realisation of data established in item 53 UK the Russian Federation of legal requirements consists that in court sentences there is no exact number of appearances condemned in criminally-executive inspection within a month. Courts are obliged to specify exact number of appearances in ­ ugolovnoispolnitelnuju the inspection, appointed to everyone condemned within a month.

we Believe, that occurrence of explanations of many questions pravoprimenenija in the Decision of Plenum of the Supreme Court of the Russian Federation «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» will allow judges to avoid many errors of awarding punishment.

On the basis of the data received at the analysis of 160 criminal cases on which decisions in vessels of the Chechen Republic are taken out, and also data from private affairs 90 condemned, given UII, it has been found out, that miscarriages of justice are made quite often. Under the maintenance they coincide with the miscarriages of justice resulted above (connected with an establishment pravoogranicheny for condemned to freedom restriction), admitted
in other regions of the country. They can be broken into groups depending on the maintenance.

the First group of errors is caused by that the court did not concretise the list of restrictions.

the Second category of errors is connected by that the rule according to which pravoogranichenija should be established for each illegal act separately is not observed. For example, the Supreme Court of the Chechen Republic had been appealed a sentence of October regional court of of Grozny according to which D it is condemned under the item "and" ch. 3 items 158 (two episodes), ch. 1 items 158 UK the Russian Federation. In this case to court followed list restrictions and duties on each episode separately, that has not been made. Instead have been established pravoogranichenija at awarding punishment under cumulative offences. In this connection the sentence has been excellent [140] .

the Third group of errors is caused by absence of instructions on territory where punishment should be left. Criminally-executive inspections spend exit checks, carry out gathering of the information and phone calls by the person under surveillance to persons, visit condemned on a residence in the afternoon, apply control means to condemned, including what are established at his place. In this connection it is represented to the extremely important that the court has truly defined a residence of the defendant.

In pravoprimenitelnoj to practice there are cases when condemned it is forbidden to leave territory of one municipal union (in which it is registered) though actually he lives in other. Subsequently as a result of the checks spent by employees UII, it is established, that podnadzornoe the person does not live to the address specified in a sentence. For search condemned it is necessary to spend
operatively-razysknye actions. Hence, the information given by the criminal does not suffice for an establishment of a residence. Data on actual residing of the person also should be specified on the basis of the inquiries received from employees of law enforcement bodies.

the establishment Is represented erroneous to the person, leaving restriction of freedom, an interdiction to leave territory of city area. In pravoprimenitelnoj to practice we had been found out an example when movings condemned have been limited by area territory ­ ugolovnoispolnitelnoj inspections which executed punishment. However realisation of the given interdiction became impossible whereas between the place of residence condemned and area of arrangement UII there are two intracity areas of city district of of Grozny. Hence, to visit criminally-executive inspection, carrying out a duty to be registered, the person, leaving restriction of freedom, it has been forced to break another established by a sentence pravoogranichenie [141] .

In pravoprimenitelnoj to practice there are the errors caused by an inattention to features of labour activity of the person, the committed crime. So, the regional court has appointed punishment in the form of restriction of freedom to the defendant who on character of the work has been forced to leave for territory of of Grozny. Thus by a sentence has been established will lock to leave a city. As a result condemned has lost work [142] .

Non-observance of the specified interdiction is, agrees ch. 1 item 58 Wick the Russian Federation, infringement of an order and conditions of enduring the punishment in the form of restriction of freedom also provides application to condemned disciplinary measures in the form of the prevention, and also possibility of approach of others
adverse consequences, agrees ch. 2, 3, item 58 Wick the Russian Federation. In this connection many researchers believe, that it is not necessary to award punishment in the form of restriction of freedom to the person which work carries razezdnoj or mobile character, assumes vahtovyj an activity mode if the place of work, studies is located in other settlement or in other subject of Federation [143] .

As it was already marked, the point in this question is put in the Decision of Plenum of the Supreme Court of the Russian Federation «About practice of appointment by vessels of the Russian Federation of punishment under criminal law». Now decision-making on possibility to leave municipal union territory is assigned on UII if the condemned undertakes it for realisation of labour activity or formation reception.

the Following group of errors is connected with an establishment condemned duties, not statutory (item 53 UK the Russian Federation). So, the decision of Groznensky regional court from 23. 02. 2014 ¹ 44-at-157 2014 sentence concerning the condemned has been changed by means of a putting on exception to it of following duties: to found a job, not to abuse spirits. As the basis that such restrictions of freedom by the law are not provided [144] has for this purpose served.

we Believe, that the establishment condemned to receive medical treatment for a duty for alcoholic dependence was based on analogy to positions of a part of 5 articles 73 UK the Russian Federation. In it the approximate list pravoogranicheny which is provided for the persons, leaving probation contains. However the establishment of duties by analogy is inadmissible in the Russian criminal law.

In some sentences studied by us the court has counted expedient to establish restriction which are not provided ch. 1 items

53 UK the Russian Federation, in particular: not to break a public order, not to be and not to live in dwelling of the victim, not to use an allowance not directly, not to appear in public places in a condition of alcoholic intoxication. However these decrees contradict the law.

In ch. 1 item 53 UK the Russian Federation is absent instructions on possibility of an establishment of these pravoogranicheny.

In our opinion, in some cases for correction of the persons condemned to restriction of freedom, and achievement of other purposes of punishment there will be expedient a putting on on them of additional duties, besides listed above. They are established in item 72. 1 UK the Russian Federation. So, at appointment to the person recognised sick narcotism, the basic punishment in the form of restriction of freedom the court can assign on condemned a duty to pass treatment for a narcotism and medical and (or) social rehabilitation.

Errors in pravoprimenitelnoj to activity give an occasion to employees of criminally-executive inspections in provided gl. 47 UPK the Russian Federation an order to address in court with the petition for reception of explanations and elimination of difficulties which arise at execution of sentence. For example, in case of absence of the assigned duty on condemned in the form of an appearance on registration, a sentence it can be excellent.

Thus, generalising practice of erroneous application of punishment in the form of freedom restriction in various regions of the Chechen Republic, we come to conclusion, that, establishing pravoogranichenija, courts not always consider features of the given criminally-legal measure. In certain cases there is no the concrete definition necessary for execution of punishment. Also there are also other situations in which the court unreasonably widely treats the list pravoogranicheny which can be established for the person, leaving freedom restriction.

More attentive approach to imposed interdictions and duties will allow to realise in practice the differentiated approach to
condemned and to promote an individualization of punishment in process of its correction.

III. Absence validnyh the techniques, allowing to carry out effective kriminologicheskoe forecasting in sphere of appointment and execution of punishment in the form of freedom restriction. There are some the most widespread problems reducing probability of realisation of the exact forecast.

A. Wrong definition of the factors influencing efficiency of application of punishment. Besides demographic, political, business factors, it is necessary to pay attention also to personal features condemned (especially if it is a question of forecasting at individual level). For example, on aktsentuatsii character, mental infringements (excitability, aggression, etc.), dangerous propensities and dependences (an alcoholism, a narcotism, etc.). As E.A.Loginov fairly marks, besides positive sides the most part of techniques has a lack: in bolshej degrees are studied the factors influencing behaviour, instead of personal features [145] .

B.Slozhnosti of working out validnyh techniques kriminologicheskogo forecasting, i.e. The techniques, corresponding themes to problems for which decision them use. This problem is interconnected with the complexities specified in the previous point.

B. Absence of authentic data on which the forecast is based. Hence, working out of organizational bases of gathering, the analysis, ordering kriminologicheskoj and the statistical information should affect the decision of a considered problem positively.

All these groups of problems are interconnected, since. latentnost crimes leads to discrepancy at realisation kriminologicheskogo forecasting (including forecasting
to efficiency of application of punishment). Also the neglect certain factors originally negatively influences working out of techniques, and subsequently th prediction of criminal activity. It allows to assume, that now an efficiency question kriminologicheskogo forecasting and working out of scientifically proved techniques serving to this purpose, costs sharply enough and requires the further studying.

Despite progressiveness of the rules of law regulating application of restriction of freedom, it has not extended in that degree in what it was supposed the legislator at modernisation realisation. It is thought, that corresponding positions of the legislation demand updating at least by means of the explanations given in decisions of Plenum of the Supreme Court, and also appropriate material equipment.

IV. The problems connected with application and functioning of electronic means of tracking persons, condemned to freedom restriction. We believe, that there is a necessity of acceptance of a number organizatsionnopravovyh ­ the measures promoting more effective execution of restriction of freedom, including at the expense of increase of efficiency of activity of criminally-executive inspections and kriminologicheskogo forecasting. Also it is necessary to modernise the positions of the legislation connected with a regulation of application of electronic means of tracking for condemned to given punishment. Besides, it is necessary to develop the additional methodical recommendations, concerning a procedure of supervision of the persons, leaving freedom restriction, by means of application of electronic, audiovisual, technical and other control devices.

Practice shows, that the system of electronic monitoring of under control persons is used insufficiently effectively, for example:

) that quite often there are breakages of control devices, the number of direct contacts of the employee with condemned increases, that does not promote, in our opinion, maintenance of safety of inspectors;

) there are the problems connected with an attachment of security (forbidden) zones to under control persons. These complexities are caused by bad detailed elaboration of a card (there is no portrayal of streets and houses, there are no names of the areas, squares, parks, stadiums and cemeteries, there are no roads, streets, green plantings, names of microdistricts, districts and areas of settlements);

) removal of disturbing messages is made formally, without finding-out of the real reasons of their receipt;

) with lateness reaction that control devices are inactive is carried out;

) there are the complexities connected with responsibility condemned to restriction of freedom for a damage as a result of damage by them of the equipment (there are no bases for collecting of money resources);

) the question connected with interaction UII with representatives of service of courts of justice on activization of work on collecting with condemned money resources if he has damaged the equipment of system of electronic monitoring demands additional settlement.

V. Underestimation of the factor connected with the organisation of educational work with condemned to restriction of freedom. We believe, that the given direction of activity of employees of criminally-executive inspections deserves bolshego attention. Now its productivity is underestimated. As a result, the formalistic approach to performance of educational work is observed.

Thus, taking into account modern conditions it is possible to approve, that work on realisation of punitive measures in the form of freedom restriction is led insufficiently effectively. Increase of its level, first of all,
under condition of modernisation of organisation-legal maintenance of work of criminally-executive inspections, to use of new methods of work with condemned Is required.

VI. A problem of perfection of organizational maintenance of activity UII. The decision of the given problem will be promoted by activity in following directions:

1) increase of level of preparation of workers UII, that, in turn, will allow to provide implicit execution of sentence of court concerning condemned to freedom restriction;

2) it is obviously important at the organisation and carrying out of preventive work with condemned to which punishment in the form of freedom restriction is applied, special attention to give to studying of their person for the purpose of definition of individual measures under the prevention of fulfilment by them of returns to crime after statement on the account ­ ugolovnoispolnitelnoj inspection;

3) maintenance of observance of legality and justice in activity of employees of criminally-executive inspections. According to data of research and the analysis of official data FSIN of Russia, growth of quantity of certificates of the public prosecutor's reaction which have arrived in connection with non-observance of positions of the legislation by workers UII is marked. It is caused, including, that in a number of regions there is on a low level a quality of carrying out of office checks on the facts of fulfilment of returns to crime, they are spent without deep studying of the reasons and circumstances of fulfilment condemned returns to crime; low enough professional level of employees which spend office checks is besides, marked, - employees are not trained in an order and a technique of their carrying out.

Conclusions under the paragraph:

To the factors determining decrease of efficiency kriminologicheskogo of forecasting in sphere of appointment and execution of punishment in the form of restriction of freedom, the following concerns:

- insufficiency and unauthenticity of data on a condition of criminality and measures of its prevention (latentnost the crimes, insufficient attention to regional features of territory);

- imperfection of positions of the legislation, causing complexities pravoprimenenija;

- absence validnyh techniques kriminologicheskogo forecasting;
-problems connected with application and functioning of electronic means of tracking persons, condemned to freedom restriction;

-underestimation of the factor connected with the organisation of educational work with condemned to restriction of freedom;

- a problem of perfection of the organizational-right maintenance of functioning UII.

2.2.

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A source: 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 - 2019. 2019

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