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§ 4. The kinds of punishments connected with deprivation or restriction of freedom, in the system of penalties for minors: theory and practice problems

The first kind of punishment from among the punishments connected with deprivation or restriction of freedom, is provided ch. 5 items 88 UK the Russian Federation freedom restriction.

In spite of the fact that formally article containing positions about ograniyochenii of freedom, existed in UK the Russian Federation from its most acceptance (1996), polozheyonija it in an initial variant never operated, as, according to the legislator, their introduction in action has been postponed before creation of conditions for their execution, but not later than 2001, and then - not later than 2005 Nevertheless, danyonoe the legislative design and has not been realised, and norms about punishment in

175 kind of restriction of freedom began to operate only since 2010, after preyoterpeli cardinal changes. Therefore without exaggeration it is possible to consider the given kind of punishment under criminal law new to the Russian legislation.

From the moment of introduction of restriction of freedom in action round it not utihayoet brisk discussion.

From all variety of the questions arising in connection with the given kind of punishment under criminal law, the most important to us represent three. It is a question on, whether freedom restriction in present edition retaliatory potenyotsialom possesses and whether it is capable to reach the punishment under criminal law purposes, a question on that, kayokovo its place in the system of penalties for minors, and a question about predelyonyh terms of the specified kind of punishment.

Concerning the first problem the scientific environment has reacted ambiguously. So, for example, G.V.Verina has subjected new edition of restriction of freedom to the criticism, having stated judgement that in such kind in what it exists sejyochas, «the being of deprivations and restrictions of the rights and freedom condemned, characteristic for punishments under criminal law, is not observed in the maintenance of restriction of freedom».1 Same opinions D.A.Garbatovich who notices adheres, that ograniyochenie freedom by the nature is not punishment under criminal law for not spoyosobno to reach its purposes. [416 [417]

Others insist that freedom restriction in a new wording not poyoterjalo the retaliatory essence and is capable to reach the purposes of the criminal order -

3

nija. [418]

It is thought, neither with that, nor with other position completely to agree it is impossible. It is represented, that freedom restriction really in many respects has lost the corrective essence and now possibility of achievement of the purposes of punishment

176 at appointment of the given kind of punishment under criminal law it is extremely low. However it does not mean, that it is lost absolutely and we should translate it in the category of other measures of criminally-legal influence.

At the moment, as many researchers specify, the list ograniyocheny which can be imposed at appointment of restriction of freedom, is rather similar to the duties assigned to probationeers. However it too yet does not mean, that we should put an equal-sign between ogranicheyoniem freedom and probation as differences all the same are. It kayosaetsja the purposes of restriction of freedom and probation, volume pravoograni - cheny, an order of execution, consequences of its infringement etc.

As to a place of restriction of freedom in hierarchy of punishments under criminal law on the given problem many authors express opinion on necessity peyorenosa of a considered kind of punishment above in the system of penalties.

So, G.V.VeYorina believes, that freedom restriction in a new wording in a ladder of punishments should settle down before obligatory works, 1 R.S.Ryzhov suggests to place it right after the penalty, [419 [420] D.A.Garbatovich states the point of view that freedom restriction in last edition is softer not only on sravneyoniju with obligatory and correctional labour, but also with the penalty. [421] E.KapiYotonova also considers, that actually considered punishment «has as much as possible come nearer to the restrictions established at probation (which, as is known, does not concern at all punishment kinds)». [422]

It is necessary to agree with G.V.Verinoj's position: really, obligatory and the correctional labour connected with restriction in sphere of work, freedom restriction is obvious javyoljajutsja more heavy punishments, than. At the same time the penalty, the debaring to occupy certain posts or to be engaged opreyodelennoj in activity and deprivation special, military or honourable zva -

177 nija, a class rank or the state awards - much softer kinds nayokazanija.

As to introduction of restriction of freedom in the system of penalties for nesoyovershennoletnih some authors see in it positive potential and doyopolnitelnye possibilities for differentiation of their criminal liability. [423] despite lacking excessive optimism in relation to the given kind nayokazanija, nevertheless it is necessary to recognise, that freedom restriction in the system of penalties for minors has risen to the place of punishment, positions about which are not applied till now - arrest that has really expanded possibilities diffeyorentsiatsii punishments under criminal law of the given category of persons. Nevertheless, more suyoshchestvenno another: presence of a considered kind of punishment under criminal law pozvoyolit pravoprimenitelju to depart from practice of universal appointment of probation to imprisonment. Proceeding from resulted before statistical data, the unfavourable conclusion that to minors probation to imprisonment till now is too often applied has been drawn. From this point of view, the restriction of freedom possessing practically same naboyorom pravoogranicheny, but thus being absolutely independent kind of punishment under criminal law, possesses notable advantage in aspect okayozanija criminally-legal influence on the person who has committed a crime. SleYOduet only to hope, that pravoprimeniteli will go on this way.

Some positive shifts in this party are already observed, though meanwhile practice goes unpredictable ways. At studying pravoprimeniyotelnoj practice of regional vessels and world judges of the Saratov and Volgograd areas for last years it has been noticed, that the majority of vessels till now practically do not use freedom restriction, preferring to operate "in the old manner" and to appoint imprisonment conditionally. So, the share of sentences to ograniyocheniju freedom concerning minors for 2011-2015 constitutes 1,5 % in the Saratov area and 3,3 % in the Volgograd area.

For example, L.D.A., operating deliberately without the plunder purpose, by svobodnoyogo access has got into salon of the car belonging to the River of N.S.after that, isyopolzuja keys being in the car, has tried to get it dvigayotel. Not having got the engine, L.D.A., together with the person who is not suspecting about its criminal intents, has started to push the car. Court of action L.D.A. kvayolifitsirovany on ch. 1 items 166 UK the Russian Federation. The sentence from 02.03.2015 to it appoints punishment in the form of restriction of freedom for a period of 1 year of 6 months and following restrictions are established: not to change a residence without the consent ugolovnoyoispolnitelnoj inspection, not to leave for limits municipal obrazovayonija «Saratov», not to leave the place of permanent residence at night days; also on L.D.A. The duty is assigned to be in ugolovnoyoispolnitelnuju inspection once a month for registration. [CDXXIV]

At the same time, of River V, operating deliberately, for the purpose of wrongful zavlayodenija a vehicle, having taken advantage of absence of by-standers, has got into salon of the car VAZ-2106 belonging D.N.A., with the help nayohodivshegosja in the lock of ignition of a key has started the engine then, operating the car, has passed in , and then has gone aside where, disappearing from prosecution, has stopped the car at deadlock of a country file and has disappeared. By court of action of of River V are qualified on ch. 1 items 166 UK the Russian Federation. The sentence from 10.12.2014 to it appoints punishment in the form of imprisonment for the term of 2 years usyolovno with a trial period in 2 years. On condemned duties are assigned: not to change a constant residence without notice the specialised state body which is carrying out the control over behaviour of the probationeer, regularly to be in the specified body on registration on ustanovyolennomu this body to the schedule. 1

Difference in time between these two sentences - only three months while from the moment of introduction of restriction of freedom there have passed some years. In the resulted cases the plot of criminal cases is similar, is present dovolyono the big set of extenuations: infancy, confession, an appearance with guilty, active contribution to crime investigation, repentance in sodejannom. Thus there are no aggravating circumstances. There are no data about the previous previous conviction of the person, that also could affect on subekyotivnoe perception court of the person guilty and circumstances of business. Not clearly, than at removal of the second sentence resulted as an example rukovodstvoyovalsja the judge who has appointed imprisonment it is conditional.

As to the minimum and maximum penal term in a kind ograyonichenija freedom, it appears, here it is necessary to follow the logic offered earlier and to differentiate penal terms depending on age vinovyonyh: for persons at the age from fourteen till sixteen years - for the term from three weeks till one year of four months, and at the age from sixteen to vosemnayodtsati years - for the term from one month till two years.

Application to minors of punishment in the form of imprisonment reyoguliruetsja ch.ch. 6, 6.1 items 88 UK the Russian Federation. From the analysis of the specified norms follows, that liyoshenie freedom concerning minors at the age from fourteen till sixteen years can be appointed for fulfilment of grave crimes, and also the crimes of small or average weight made repeatedly; the maximum term of a considered kind of punishment thus constitutes six years. For fulfilment especially grave crimes the maximum term of imprisonment constitutes ten years. Concerning minors at the age from sixteen till eighteen years imprisonment can be appointed for the crimes of average weight heavy and especially heavy, and also crime neyobolshoj of weight at their fulfilment repeatedly; the maximum penal term in this case constitutes ten years of imprisonment. At appointment nesoveryoshennoletnemu condemned punishments in the form of imprisonment for fulfilment heavy or especially grave crime the lowest limit of punishment, predusmot -

180 rennyj corresponding article of the Special part of the present Code, sokrayoshchaetsja half.

The share of sentences with appointment as the minor of punishment in a kind liyoshenija freedom from among the studied sentences of regional vessels and world judges of the Saratov and Volgograd areas which have been taken out in 2011-2015, constitutes 10,4 % on the Saratov area and 16,7 % - on the Volgograd area.

At the analysis of item 88 UK the Russian Federation as a whole becomes obvious, that concerning the majority of kinds of punishment the legislator does not differentiate their terms and razmeyory depending on age guilty, however concerning imprisonment it undertakes some steps towards differentiation of the given kind ugoyolovnogo punishments. So, the maximum limit of imprisonment for persons, not dosyotigshih shestnadtsatiletnego age, more low, than for persons at the age from shestnayodtsati till eighteen years.

The similar decision of the legislator, apparently, is not deprived some defects. The formulation of the norm containing in ch. 6 items 88 UK the Russian Federation, are represented neudachyonoj because it comprises internal contradictions.

One of the topical questions demanding the permission is voyopros imprisonment deadlines, as the legislator not formuliyoruet an accurate position concerning the minimum and maximum limits liyoshenija freedom taking into account gradation of crimes on severity level. Especially confused the question on imprisonment deadlines in otnosheyonii minors from sixteen till eighteen years appears. The legislator usyotanavlivaet an interdiction for appointment to the given group of persons of imprisonment in case of fulfilment of a crime of small weight by them for the first time. As to preyodelnyh terms, how it was already mentioned, the legislator was limited only upoyominaniem, that punishment is appointed to term not over ten years.

The given approach leads to various judgements and generates not indisputable judgements of theorists. So, J.V.Moiseenko considers, that the general maximum term of imprisonment established by the legislator for nesoyovershennoletnih, extends on all categories of crimes irrespective of

Degrees of their weight. [CDXXV] [CDXXVI] it is difficult to agree with such judgement already because it does not consider positions of item 15 UK the Russian Federation where are specified minimum and maksimalyonye imprisonment limits in a binding to categories of crimes.

Does not eliminate problematical character of a question and Plenum of the Supreme Court of the Russian Federation, in punkyote 26 which Decisions from February, 1st, 2011 № 1 «About judiciary practice of application of the legislation regulating features criminal otvetyostvennosti and punishment of minors» (in red. From 29.11.2016 № 56) konyokretizirujutsja legislation positions only in that part which concerns imprisonment applications to minors aged till sixteen years, made grave crimes. According to the third paragraph ukayozannogo point, «the minor condemned, made heavy preyostuplenija about 16 years are elderly... Both for separate grave crime, and on their set punishment cannot be appointed to term over six years of imprisonment».1 Questions at pravoprimenitelja in this context remain.

That them to remove, it is necessary to establish legislatively accurate limits of imprisonment concerning each category of crimes taking into account their severity level. Besides, as well as other kinds of punishment, terms of imprisonment for minors it is necessary to differentiate depending on age guilty.

Here there is a new question - about appointment possibility nesovershennoletyonim imprisonments for crimes of small and average weight. It would Seem, the explanation given by Plenum of the Supreme Court of the Russian Federation, completely removes voyopros about limits of imprisonment concerning minors aged till sixteen years; nevertheless, before it is necessary to think of, whether dejstviyotelno appointment of the given kind of punishment under criminal law of the named category of persons probably only for heavy and especially grave crimes? If to address to ch. 6 items 88 UK the Russian Federation from its literal interpretation the conclusion follows, that appointment of imprisonment to persons of the specified age group probably in a case sover -

182 shenija crimes of small and average weight repeatedly. The question about miniyomalnyh and the maximum limits of imprisonment at fulfilment such kayotegory crimes the legislator is not solved. And Plenum of the Supreme Court has not given any explanations in the given occasion.

Imprisonment to persons at the age from sixteen till eighteen years, according to ch. 6 items 88 UK the Russian Federation, can be appointed for fulfilment prestupyoleny average weight, and also heavy and especially grave crimes. ZakonodaYOtel also does not exclude possibility of appointment of the given kind criminal nakayozanija for committing a crime of small weight repeatedly.

It is necessary to mention, that there are the researchers supporting possibility of appointment of imprisonment by the minor at the age from fourteen till sixteen years. [CDXXVII] it is necessary to agree with the resulted judgement for it will really create additional possibilities for differentiation ugoyolovnoj responsibility. At the same time concerning minors not moyozhet to be applicable the norm putting their destiny in dependence on presence predyyodushchej of a previous conviction, for a position of the legislator on the given question (ch. 4 items 18 UK the Russian Federation) is definitely enough formulated: the previous previous convictions for prestuyoplenija, made at minor age, are not considered at resheyonii a question on a recognition sodejannogo by relapse of crimes.

The interdiction established by the legislator for appointment of imprisonment in case of committing a crime of small or average weight for the first time (for persons at the age from fourteen till sixteen years) or crimes nebolyoshoj weights for the first time (for persons at the age from sixteen till eighteen years) also causes many questions and complexities during realisation ugolovnoyopravovyh norms. The criminal code does not explain concept «the person, for the first time soveryoshivshie a crime», Plenum of the Supreme Court of the Russian Federation in the aforesaid poyostanovlenii defines a circle of persons which crimes are considered sovershenyonymi for the first time: 1) the persons who earlier did not have previous convictions; 2) persons, in the relation kotoyoryh the previous sentence has not entered validity; 3) the persons who had earlier

Previous convictions for crimes which have been removed or extinguished in a statutory order (item 26 paragraph 2). [CDXXVIII]

It is represented, that the given interpretation enters the direct contradiction with positions of General part UK the Russian Federation, in particular, norms ch. 4 items 18 and ch. 1 item 86 UK the Russian Federation from which close interpretation follows, that a previous conviction for earlier soyovershennye crimes influences the size of punishment by its account at priznayonii crimes relapse. However concerning minors of a rule about relapse do not operate. Plenum puts possibility of appointment of the most strict punishment - imprisonments - in direct dependence on, whether whether there is for the minor an outstanding previous conviction, otherwise, there is a crime relapse. Therefore there is a question: so on what basis zayokonodatel supposes in case of fulfilment by the minor of a crime small and (or) average weight repeatedly application to guilty more zheyostkih punitive measures? This question, unfortunately, in the conditions of imperfection rosyosijskogo the criminal legislation while remains without the answer.

It is thought, that the resulted position of Plenum of the Supreme Court of the Russian Federation is justified by nothing. Even more zybko it looks against position of the persons who have made heavy and especially grave crimes, for they, from an easy hand of the legislator, nahoyodjatsja in primary position in relation to the persons, made meyonee grave crimes. To the persons who have made less grave crimes, positions which to minors in general to be applied are applied should not according to the item ch. 4 items 18 UK the Russian Federation. The persons who have made more grave crimes, bear responsibility irrespective of quantity soveryoshennyh crimes, i.e. the measure of their punishment does not depend on frequency. About same speaks also Plenum of the Supreme Court of the Russian Federation: in the paragraph of third point 26 are specified, that the maximum penal terms established ch. 6 items 88 UK the Russian Federation, raspro -

184 stranjajutsja on all persons irrespective of, whether for one crime the sentence is pronounced, or the cumulative offences or sentences take place. [CDXXIX]

It is necessary to notice, that the position establishing non-use lisheyonija of freedom to the minors, should not contain the conditions connected with relapse of a crime. Differently, committing a crime of small weight by the person who has not reached majority, should be unconditional osnoyovaniem for non-use to it of the given kind of punishment under criminal law, irrespective of frequency. A special urgency this question gets against issledoyovany B.T.Razgildieva who suggests not to apply imprisonment to the adults who have committed some crimes of small weight, named it criminal проступками.1 As to crimes of average weight they should be included in the list of acts for which fulfilment it is possible naznacheyonie imprisonments.

One more problem which it would be desirable to mention in data issledovayonii, consists in the following. The part 6.1 items 88 UK the Russian Federation establishes, that miniyomalnyj the term of imprisonment provided by the sanction of article of Special part UK the Russian Federation, concerning the minors who have made heavy and especially grave crimes, is cut by half. On the one hand, here prosleyozhivaetsja positive aspiration of the legislator to a humanisation criminal otvetstyovennosti the persons who have not reached majority. At the same time extend vozyomozhnosti differentiations of the criminal liability, as, considering ogyoranichenie the maximum limit of the imprisonment, established ch. 6 items 88 UK the Russian Federation, imprisonment limits for heavy and especially grave crimes, sushcheyostvovavshie before introduction ch. 6.1 items 88 UK the Russian Federation, appeared unreasonably suzhenyonymi.

So, ch. 2 items 105 UK the Russian Federation are provided by responsibility in the form of imprisonment for the term from eight till twenty years. Taking into account features of application of imprisonment concerning minors, the maximum limit under the given sanction is reduced till ten years. Thus, possibilities pravoyoprimenitelej on differentiation of the criminal liability nesovershennoletyonih by means of awarding punishment for similar crimes have been strongly limited earlier - from 8 till 10 years. In connection with analyzed the Russian Federation possible a criminal sentencing nesovershennoyoletnemu on ch there was short story of item 88 UK. 2 items 105 UK the Russian Federation in a range from 4 till 10 years. In this connection resheyonie the legislator about introduction in ch. 6.1 items 88 UK the Russian Federation to certain degree was justified as expanded possibilities pravoprimenitelej in a choice of term of imprisonment. Nevertheless, and it is not deprived certain defects.

It is meant "defects", that the legislative formulation noryomy ch. 6.1 items 88 UK the Russian Federation is that, that does not include all categories prestupleyony for which by the minor imprisonment can be appointed. However the system analysis of the criminal law allows to conclude, that the given kind of punishment also can be appointed for: 1) fulfilment of crimes sredyonej weights the minor at the age from sixteen till eighteen years, and also the minor at the age from fourteen till sixteen years in case of fulfilment of the specified crime repeatedly; 2) fulfilment prestupyolenija small weight repeatedly minor, irrespective of vozrasyotnoj groups.

It means, that in a context of the minimum limits of punishment follows zayodumatsja about all these categories of crimes. However at an establishment nakayozanija in the form of imprisonment for crimes of small weight minimalyonym the limit equal to is minimum possible limit for the given kind of punishment (2 months according to ch is. 2 items 56 UK the Russian Federation); in the text of sanctions of articles of Special part UK the Russian Federation it is expressed in absence of instructions of the minimum limit of punishment. The similar image basically establishes punishments concerning crimes of average weight: FZ from December, 8th, 2003 № 162-FZ in
UK the Russian Federations have been made changes according to which in sanctions for bolyoshinstvo crimes of average weight the minimum limits of punishment in the form of imprisonment have been cancelled. It would Seem, it levels a problem. Nevertheless, it not absolutely so. In Special part UK the Russian Federation exists a number of articles, soyoderzhashchih crimes of average weight in which sanctions there are instructions on the minimum limit of punishment. The majority of these crimes can be made including minors (see tab. 1).

Table 1

Imprisonment terms for crimes of average weight

Article imprisonment Term

Part of 2 articles 127 From 3 till 5 years
Part of 1 article 185.6 From 2 till 4 years
Part of 1 article 205.2 From 2 till 5 years
Part of 1 article 223 From 3 till 5 years
Part of 1 article 230 From 3 till 5 years
Part of 1 article 235.1 From 3 till 5 years
Part of 2 articles 242 From 2 till 5 years

It is thought, that the developed situation does not meet the requirements of a justice principle. It is a question that, for example, the seventeen-year-old teenager who has made grave crime, has possibility to receive punishment below a limit provided by the sanction of article of Special part UK the Russian Federation on osnovayonii ch. 6.1 items 88 UK the Russian Federation, and the same teenager who has committed a crime sredyonej of weight, entering into the resulted list, is deprived similar possibility.

It is represented, that the given rule at all is not necessary. As it was already marked, the minimum and maximum limits of imprisonment for minors should be differentiated depending on kategoyorii the committed crime and age guilty. In this connection neobhodiyomo legislatively to establish both minimum, and the maximum limits of imprisonment for each age group of minors and for kazhyodoj categories of crimes. So, the minimum and maximum limits lisheyo
nija freedom should be reduced: concerning persons at the age from fourteen till sixteen years - to one third, concerning persons at the age from sixteen till eighteen years - to one second the terms provided for adults. RasYOchet possible limits of punishment for minors starting with miniyomalnyh and the maximum limits of imprisonment for adults, zakreplenyonyh in item 56 and item 15 UK the Russian Federation (see tab. 2).

Table 2

Terms of imprisonment of minors

G ruppy persons Categories of crimes
Small weight Average

Weights

The heavy Especially heavy
14-16 years From 3 weeks to

1 year 8 mesjayo

tsev

From 3 weeks to

3 years of 4 months

From 3 weeks to

6 years of 4 months

16-18 years From 1 month to

2 years of 6 months

From 1 month to

5 years

From 1 month to

10 years

In this connection about imprisonment it is necessary to state positions in otdelyonoj to article in the following edition:

«Article 889. Imprisonment

1. Imprisonment is appointed the minor condemned in vozyoraste from fourteen till sixteen years for the term from three weeks till six years of eight months. The maximum penal term is differentiated depending on weight of the committed crime and constitutes: one year eight months - for crimes of the average weight, three years four months - for heavy prestupleyonija and six years eight months - for especially grave crimes.

2. Imprisonment is appointed the minor condemned in vozyoraste from sixteen till eighteen years for the term from one month till ten years. The maximum penal term is differentiated depending on weight of the committed crime and constitutes: two years six months - for prestuple -

188 nija the average weight, five years - for grave crimes and ten years - for especially grave crimes.

3. Imprisonment cannot be appointed to certain term nesoyovershennoletnemu, committed a crime of small weight.

4. Imprisonment for certain term minors leave in educational colonies ».

Penal terms at such calculation are insignificant (see tab. 2), and not only for crimes of average weight, but also for grave crimes. In the scientific environment there is no common opinion concerning, whether it is necessary to apply short-term imprisonment concerning minors. Some researchers consider, that the given punishment is not meaningful, as with condemned not usyopevajut to carry out all actions directed on their correction, and it is better to replace it with arrest or штрафом.1 Others adhere opinion on repeated increase in retaliatory potential of imprisonment at its increase sroyoka. [430 [431] it is thought, the opinion of the authors noticing is more fair, that kratkosrochyonoe imprisonment till one year yields the fruits. [432]

However it is difficult to agree with A.P.Kondusova's believing opinion, that imprisonment should give a priority place among measures ugolovnoyopravovogo influences what exactly it can affect consciousness nesovershenyonoletnego and entail return to pravoposlushnoj lives. [433] more proved G.S.Gaverova's point of view which took away the leading part in isyopravlenii minor offenders to the measures which have been not connected with izoljayotsiej from a society is represented. [434]

It is necessary to understand, that it is a question of teenagers and about their premise in krimiyonalnuju the environment which negative influence follows as much as possible izbeyogat, but we should realise that it is not always possible. In neyokotoryh cases if the court comes to conclusion, that for correction condemned it is necessary to isolate from a society, it is necessary to have the punishment connected with such isolation in an arsenal. [CDXXXV]

The system of penalties for the minors, the Russian Federation presented to item 88 UK, does not contain other punishments connected with deprivation or restriction svoyobody condemned, that essentially limits possibilities difyoferentsiatsii their criminal liability and practically leads poljarnoyosti statutory punishments. To overcome created "proyopast" between punishments, the Russian Federation it is necessary to include in item 88 UK and others nakayozanija, connected with deprivation or restriction of freedom condemned, in chastnoyosti arrest and forced hard labour.

Arrest as it was mentioned earlier, was present at the first edition ch. 1 items 88 UK the Russian Federation, however, according to the changes brought Federal zakoyonom from December, 27th 2009 № 377-FZ, its place has occupied punishment in the form of freedom restriction.

At questioning carrying out questions rather areyosta for finding-out of opinion of respondents about an exception of arrest of system nakayozany for minors and possibility of its returning have been included. Thus bolyoshinstvo interrogated (78,3 % of experts, 52 % of scientists and 50,9 % of students) polagayojut, that arrest followed leave in the system of penalties for minors, however to change an order and conditions of its serving. Simultaneously in the issleyodovanii it was difficult not to concern in the given aspect of a question of conditions of serving with minors of arrest in case the given kind of punishment will be again included in the system of penalties for minors. Opinions of respondents as a whole have coincided: about half interrogated (45 % of experts, 48 % of scientists and

190 41,9 % of students) consider as the most suitable conditions at which osuzhyodennye minors will be in lock-ups in free from the basic work or study time, on the conditions similar with facilitated usloyovijami in educational colonies.

The opinion that arrest is necessary in the system of penalties for minors is represented correct, [CDXXXVI] but it it is necessary to alter. In nayostojashchy the moment arrest consists in the maintenance condemned in conditions stroyogoj isolation from a society and is established for the term from one about six months. Appointment of arrest to term probably only in the event that it occurs less than one month in a replacement procedure arrest obligatory or correctional labour. It is thought, it is necessary to enter arrest in the form of the short-term maintenance osuyozhdennogo in the conditions of partial isolation from a society. There are situations, koyogda the punishment which has been not connected with isolation from a society, is not capable to render dolzhyonogo corrective influence on the condemned minor, but it yet is not the basis for appointment to it of imprisonment and premises in correctional facility where for it there is a danger to be submitted to influence of the criminal environment. In present edition of the item 88 UK the Russian Federation for nesoveryoshennoletnih remains only one punishment connected with isolation from a society - imprisonment for certain term. It is represented insufficient, poyoskolku though for today the minimum term of imprisonment and is established in two months, the given punishment is most strict of all provided for minor punishments. In that case short-term arrest can appear more fair and, vozmozhyono, effective.

In the scientific environment the approach to punishment in the form of arrest is various. In particular, I.A.podrojkina believes, that its presence in UK the Russian Federation «contradicts justice requirements, will not be adjusted with domestic historical and foreign experience, destroys idea« ladders »punishments in item 44 UK the Russian Federation». 1

A.V.Naumov approves, that arrest «is some kind of a reminder prestupyoniku about that. That this kind of punishment can follow and long liyoshenie freedom».1 According to A.M.Ibragimovoj, «arrest is means moyoralnoj shake-ups of the offender, especially if it is condemned for the first time». [437 [438] soyoglashajas with A.V.Naumov's resulted judgement, it is necessary to recognise tselesoobyoraznym to return arrest in the system of penalties for minors. Thus term of the given kind of punishment concerning minors at the age from cheyotyrnadtsati till sixteen years should constitute from seven days to ones and a half meyosjatsev, and concerning minors at the age from sixteen to vosemyonadtsati years - from ten days about two months.

It is represented, arrest for term seven days, that is one week is miniyomalnyj term of isolation from a society which can be sufficient for those minors, whose consciousness yet has not received a steady antisocial orientation and can provide achievement of the purposes of punishment under criminal law. NaYOznachenie arrest more than for two months, sees unjustified from a position dosyotizhenija the punishment under criminal law purposes. Besides, two months - the minimum term to which punishment in the form of imprisonment can be appointed. As imprisonment provides bolshy volume pravoogranicheny, than arrest for the same term, it is represented, the maximum term of arrest should be close to the minimum term of imprisonment. Arrest appointment nesovershennoletyonim on bolshy term, it appears, is superfluous. Terms of arrest for adult persons should be accordingly changed.

According to ch. 1 item 54 UK the Russian Federation arrest consists in the maintenance osuzhyodennogo in the conditions of strict isolation from a society and is established for the term from one about six months. Chapter 10 of the Criminally-executive code of the Russian Federation (further - Wick the Russian Federation) «the Order and conditions of execution of punishment in the form of arrest» ustanavliyovaet even more strict conditions of serving of arrest, than it is provided for

192 imprisonments which minors condemned leave in vospiyotatelnyh colonies. In particular, ch. 2 items 69 the Russian Federation provide Wick, that on the condemned the conditions of the maintenance established by the present code for condemned to imprisonment, serving time in usloviyojah the general mode in prison extend.

Such approach to business in a root is wrong. Arrest - less strict punishment, than imprisonment, and conditions of its serving should not be so rigid. After all enduring the punishment in prison, according to ch. 2 items 58 UK the Russian Federation, ch. 7 items 74 and ch. 1 item 130 Wick the Russian Federation, can be appointed only to the men condemned to nayokazaniju in the form of imprisonment by term over five years for fulfilment especially of grave crimes, and also at expecially dangerous relapse. And even in this case the condemned goes to prison only for serving of a part of term naznachennoyogo punishments. For this reason it is necessary to agree with those researchers, kotoyorye subject to criticism so severe constraints of serving of arrest. 1 represents scientifically-practical interest foreign experience. So, for example, so-called «the shock model» arrest has not passed in Germany check by practice and was otyovergnuta scientists-lawyers as inefficient ». [439 [440]

However in the Russian conditions nevertheless it is necessary to leave arrest among punishments under criminal law, having brought thus corrective amendments in conditions of its serving both for adults, and for minor persons. It is necessary to notice, that conditions of enduring the punishment in the form of arrest in lock-ups for the persons who have not reached soyovershennoletija, should be similar to the facilitated conditions in vospitayotelnyh colonies. Besides, the persons who have not reached majority, should leave arrest in lock-ups during free from study or work vre -

meni that is to be in lock-up all time, except that time which is necessary for training continuation. In practice it can be realised by means of use of system of electronic monitoring, which primeyonjaetsja, for example, at execution of punishment in the form of house arrest in the USA and at execution of a preventive punishment in the form of house arrest in our country. DanYOnoe the decision has two principal causes: the first - such approach will allow izbeyozhat negative consequences of isolation from a society, such, as loss sotsialyonyh communications, acquisition of criminal experience etc. the Second reason zakljuchayoetsja that training continuation during time nayohozhdenija in lock-up as with reference to minor offenders it is impossible to forget that they should have possibility to get education is obviously necessary. Such components of a mode, as labour and professional education are not less important. It is necessary to agree with A.A. Bahvalovoj, otmeyochajushchej, that arrest can carry out the important precautionary function, and inclusion in the maintenance of arrest for minor elements of labour education, training, vocational training could strengthen data эффект.1 Positive influence on minors during arrest serving could render psychological conversations and trainings regular psiholoyogov which existence in similar establishments would be more than tseleso - figurative. [441 [442]

As it was already mentioned, the legislator all the same has counted necessary priyosutstvie in the list of punishments of one more punishment connected with isolation from a society, besides imprisonment and arrest, and the Federal act from 7 deyokabrja 2011 № 420-FZ [443] has entered in UK the Russian Federation of item 53.1 establishing new ugoyolovnoe punishment - forced hard labour. The given punishment is presented in zayokone as possible alternative to imprisonment when court on -

194 considers possible correction condemned without real serving nakazayonija in the places of confinement. Inherently forced hard labour is rather similar to correctional labour as represent prinudiyotelnyj work with withdrawal in favour of the state of a part of earnings at the rate from 5 % to 20 %. 1 On the other hand to be executed they should though and not in the conditions of isolation from a society, however in correction centres specially created for these purposes, that already obviously reminds freedom restriction in first edition UK the Russian Federation 1996

In this occasion in the press brisk discussion at once was developed. [444 [445] in soyootvetstvii with ch. 7 items 53.1 UK the Russian Federation forced hard labour are not appointed nesoyovershennoletnim. Such legislative decision is quite expected, after all prezhyonee freedom restriction, which niche was partly occupied with new punishment, also was not applied to minors, and in a new wording item 53 UK the Russian Federation ograniyochenie freedom has absolutely other essence. However if to analyze peyorechen punishments for minors in the light of the changes brought FedeYOralnym by the law from 27.12.2009 № 377-FZ and the Federal act from 07.12.2011 № 420-FZ it is possible to notice, that at the moment ch. 1 item 88 UK the Russian Federation contains only one kind of punishment connected with isolation from a society, namely imprisonment for certain term which is most stroyogim a kind of punishment under criminal law for minors. From here follows, that, keeping a course on a humanisation of punishment for minors, the legislator as though tries to supersede the punishments connected with isolation from a society, from

195 pravoprimenitelnoj experts to reduce their application to nesovershennoletyonim, even, perhaps, to make their application by the sole penalty. And in this case there is an obvious question: if forced hard labour is applied isyokljuchitelno as alternative to imprisonment, and its conditions primeneyonija assume, what the given punishment less strict why nesovershennoyoletnie are deprived possibility of such replacement? After all it puts them in the worst polozheyonie in comparison with adult criminals. Why the legislator enters an interdiction for application of forced hard labour to minors? PrinudiYOtelnye works include three aspects: the maintenance condemned in chastichyonoj isolation from a society, forced labour and monetary deduction in favour of the state. [446] as to the first, as to minors punishment in the form of imprisonment can be applied, is not represented reasonable to refer to excessive severity of forced hard labour. The second and the third also cannot serve as an explanation of unwillingness of the legislator to give nesoyovershennoletnim condemned possibility of replacement of imprisonment prinudiyotelnymi works. The matter is that the same Federal act from 07.12.2011 № 420-FZ the legislator has made changes in ch. 1 items 50 UK the Russian Federation, izloyozhiv it in the following edition: « Correctional labour is appointed osuzhdenyonomu, taking the basic place of work, and is equal not having it. Condemned, taking the basic place of work, leaves correctional labour on osnovnoyomu to a work place. Condemned, not having the basic place of work, leaves correctional labour in the places defined by bodies local samoupravleyonija in coordination with criminally-executive inspections, but around a residence condemned ». Thus, correctional labour can be appointed now as the persons taking a constant place of work, and not having it. In the second case attraction to forced labour takes place, and both kinds of correctional labour can be applied to nesoveryoshennoletnim.

So why by the minor cannot be appointed prinudiyotelnye works? The specified decision of the legislator is represented neposledovayotelnym and demanding careful studying, on a level with others disputable voyoprosami, arisen after introduction of forced hard labour in the list ugolovyonyh punishments.

It is represented, the specified kind of punishment should be included in system nayokazany for minors, having arranged it after arrest, with one ogovoryokoj. On the character forced hard labour is close to corrective rayobotam therefore it is necessary to limit nevertheless their application to persons more youngly shestnayodtsati years. Thus it is necessary to underline in the law alternative character of the specified kind of punishment, having specified on compulsion of reception of the consent nesoyovershennoletnego on its application instead of imprisonment for crimes of average weight.

According to respondents (63,3 % of experts, 40 % of scientists and 51 % of students), forced hard labour as punishment alternative to imprisonment be comprehensible to the persons who have not reached majority. Thus, poziyotivnyj the answer was the most widespread among interrogated.

As to term of forced hard labour, that, following developed kriyoteriju differentiations of punishment concerning minors, prinudiyotelnye works should be appointed for the term from one month till two years of six months. Withdrawals from earnings condemned also should be lowered in comparison with the percent of the deduction established by the legislator in otnosheyonii condemned adults, and to constitute limits from two and a half to ten percent.

Last problem which it would be desirable to mention in connection with issledovayoniem systems of penalties for minors under the modern Russian criminal legislation is an awarding punishment in the form of deprivation svoboyody under cumulative offences and cumulative sentences. Article 88 UK the Russian Federation does not contain special positions which would establish penal terms in such cases, being limited only definition of a deadline of deprivation
Freedom for minors that testifies to existence serezyonogo a blank in the legislation. The decision of Plenum of the Supreme Court of the Russian Federation from 01.02.2011 № 1 (in red. From 29.11.2016 № 56) with a view of its completion isyopolzuet extensive interpretation of the given norm: according to the paragraph of third point 26 the maximum terms of imprisonment operate not only concerning the minors who have committed an individual crime, but also at their set, and also under cumulative sentences. Thus, VerYOhovnyj the court has incurred function unusual for it, the decision not simply explaining, but also supplementing the maintenance of norm UK the Russian Federation. In turn, prayovoprimenitel it is forced, contrary to fixed in the item 3 UK the Russian Federation to a principle zayokonnosti according to which, in particular, punishability and criminally-legal poyosledstvija acts are defined only by the Criminal code of the Russian Federation to address to other normative act for finding-out of a question on what legal posledyostvija should come. It is thought, that existing position is nedoyopustimym and demands intervention at legislative level.

As to penal terms, that, presumably, the Supreme Court isyotolkoval the legislation herein from humanism reasons in relation to juvenile delinquents. Such approach, however, predyostavljaetsja unilateral as the principle of humanism is considered only and at the same time is not considered institute of plurality of crimes and a principle spravedlivoyosti. It is thought, that to experience of such countries, as UkraiYOna, Belarus, Tajikistan, where the criminal liability under cumulative sentences and (or) under cumulative offences above, than for individual preyostuplenie here makes sense to address.

At introduction of the raised maximum terms of imprisonment for neyosovershennoletnih it is necessary to take advantage of the same principle, as well as in otnosheyonii all other punishments which «a red thread» passes through all dissertational research. Taking into account the given principle at appointment nayokazanija under cumulative offences the maximum penal term in a kind liyoshenija will constitute freedom eight years four months for minors in

198 age from fourteen till sixteen years and twelve years six months - for minors at the age from sixteen till eighteen years. At nayoznachenii under cumulative sentences the maximum penal term in the form of imprisonment should constitute punishments ten years for minors at the age from fourteen till sixteen years and fifteen years - for nesoveryoshennoletnih at the age from sixteen till eighteen years.

So, at the moment in the Russian system of penalties for nesoveryoshennoletnih is present only two kinds of punishment connected with deprivation and ogyoranicheniem freedom is a restriction of freedom and imprisonment. It predyostavljaetsja the insufficient. That the system of penalties became full and ordered, it is obviously necessary to add its with two more nakazayonijami - arrest and forced hard labour. All considered in data payoragrafe punishment kinds should be differentiated under deadlines according to the same principle, as the punishments which have been not connected with deprivation and ograniyocheniem of freedom. Freedom restriction should take a place in the system of penalties in compliance with degree of its weight, i.e. Right after the penalty. Arrest introduction in sisteyomu punishments for minors should be accompanied by change poyorjadka and conditions of its serving. In particular, minors should otbyyovat arrest in lock-ups in free from the basic work or study time for the conditions similar to concessionary terms in educational colonies. PrinuYOditelnye works should become punishment alternative to imprisonment, and at their appointment the court should consider opinion of the defendant.

At research pravoprimenitelnoj judiciary practice concerning minors on the analysis of the account of extenuations has been carried out at awarding punishment by the minor which has shown the following. More often at a criminal sentencing the minor vessels of the Saratov and Volgograd areas considers the following softening obyostojatelstva: infancy (100 % in both areas); an appearance with guilty (danyonoe the extenuation meets in sentences of vessels of Saratovyosky area - 61 % is more often, in the Volgograd area their quantity much more low -

18 %) and active contribution to disclosing and crime investigation (78 % in the Saratov and 40 % in the Volgograd area). According to ch. 2 items 61 UK the Russian Federation courts also often specify following extenuations: confession (72 % in the Saratov area and 55 % in the Volgograd area); repentance in sodejannom (41,8 % in the Saratov area and 50 % in Volgograd obyolasti).

Nevertheless, there are also differences. So, courts of the Saratov area in neyokotoryh cases apply as extenuations public bringing of apologies to the victim (18 %), opinion of the victim, not nastaiyovavshego on strict punishment (16,4 %), the mental disorder of the defendant which is not excluding responsibilities (4,5 %). Similar extenuations at awarding punishment in the sentences investigated by us were not considered by vessels of the Volgograd area.

Besides, at research of the given sentences obvious remedial infringements (item 3 of item 307 UPK the Russian Federation), namely absence of instructions in a sentence on extenuations have been noted. In one case the court specifies on nayolichie certain extenuations which are considered by it at naznacheyonii punishments, however does not list them. In other - no mentions of extenuations in a sentence of the world judge are available at all.

Thus, the analysis pravoprimenitelnoj experts to destination ugoyolovnogo punishments by the minor in the Saratov and Volgograd areas shows, that the greatest quantity of verdicts of guilty concerning the persons who have not reached majority, are sentences on which punishments according to item 73 UK the Russian Federations are considered as the conditional. However probation not always provides achievement by punishment of the purposes. Besides, shiroyoky the spectrum of the punishments applied concerning minors for tozhdeyostvennye of a crime in the presence of similar extenuations and otyosutstvii aggravating, leads to thought, that frequently kind appointment nakazayonija depends on judicial discretion. It also reveals serious blanks in sisteyome punishments of minors. It is represented, that similar occurs,

200 in addition, because of imperfection of the system of penalties for nesovershenyonoletnih, i.e. its incompleteness and imbalance. Is absent also diffeyorentsiatsija limits of each kind of punishment depending on age vinovnoyogo. The decision of the given problems will allow to individualise strictly punishment concerning the guilty persons who have not reached majority.

Bringing the general result, it is necessary to note the following. Studying of problems of a regulation and the realisation of positions of item 88 UK the Russian Federation establishing the system of penalties for minors and feature of their application, leads zayokljucheniju about absence of due orderliness of data criminally-rules of law. The legislator shows that excessive rigidity excessive gumanyonost loses sight of those or other aspects and as a result forces pravoprimeyonitelja at the permission of criminal cases to address not only to criminal zakoyonu as it is demanded fixed in item 3 UK by the Russian Federation a legality principle, but also to poyostanovlenijam Plenum of the Supreme Court of the Russian Federation, judiciary practice and others istochyonikam.

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A source: Kiselyova Ekaterina Sergeevna. SYSTEM of PUNISHMENTS UNDER CRIMINAL LAW FOR MINORS UNDER the RUSSIAN And FOREIGN LEGISLATION. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov - 2018. 2018

More on topic § 4. The kinds of punishments connected with deprivation or restriction of freedom, in the system of penalties for minors: theory and practice problems:

  1. § 3. The kinds of the punishments which have been not connected with deprivation or restriction of freedom, in the system of penalties for minors: teoretiko-applied problems
  2. the punishments connected by deprivation or restriction of freedom and obligatory work
  3. Kinds and the maintenance of the punishments connected with the deprivation, in history of Russia
  4. Kinds and the maintenance of the punishments connected with the deprivation, in the foreign criminal legislation
  5. rather-legal analysis of the punishments connected with restriction of freedom, in Russia and foreign countries
  6. § 1. Concept and signs of the system of penalties for minors and its place in the general system of penalties
  7. the Modern condition and problems of a legal regulation and practice of appointment and execution of punishment under criminal law in the form of freedom restriction
  8. classification of punishments in the system of penalties
  9. 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,
  10. § 4. The System of penalties for minors in the post-Soviet territory countries
  11. a judiciary practice place e to system of sources of the European right: theory and practice problems.
  12. Chapter 5. The Legal regime of separate kinds of subventions: theory and practice problems
  13. 3.5. Scientific maintenance of problems of execution of the punishments which have been not connected with isolation condemned from society
  14. the Chapter III. The System of penalties for minors under the Russian criminal legislation: a modern condition and development prospects
  15. § 2. Evolution of system of punishments under criminal law for minors during the Post-Soviet period
  16. §2. System and kinds of punishments.
  17. § 1. The punishments directed on deprivation of the certain rights
  18. § 3.3. Restriction or deprivation of the separate rights of members of controls.
  19. § 1. The Punishments under criminal law applied to the minors in the countries of continental legal system
  20. KAMOLOV ILHOM IKROMOVICH. SYSTEM OF STANDARD LEGAL ACTS OF REPUBLIC TAJIKISTAN: THEORY AND PRACTICE PROBLEMS. THE DISSERTATION ON COMPETITION OF THE SCIENTIFIC DEGREE OF THE DOCTOR OF JURIDICAL SCIENCE. DUSHANBE - 2015, 2015