Zhanibekov Akynkozha
Kalenovich
Doctor of PhD, associate professor of Department of
Criminal law, Criminal procedure and Criminalistics, Law faculty,
Al-Farabi Kazakh National University
Muratova Alua Zhaslanqyzy
master of 2 course of
Department of Criminal law,
Criminal procedure and Criminalistics,
Law faculty, Al-Farabi Kazakh
National University
URGENT
PROBLEMS OF THE CHOICE OF A TYPE OF CORRECTIONAL FACILITY AND CONDITION OF
SERVING SENTENCE
The minimum standard rules of the treatment of
prisoners of the UN, as well as the European prison rules, formulate a number
of criteria of classification of convicts, including their breakdown on these
or those categories. The correct classification of convicts - a necessary
condition of differentiation of programs of the treatment of them and cures,
safety and effective controllability of the institutions executing punishments,
optimum distribution of the available forces and resources. Such approach to execution
of punishments is defined also by Criminal executive code of the Republic of
Kazakhstan.
The order of execution and serving sentence is defined
by standards of the criminal and executive right which carry out an organizing
role in the mechanism of his realization and are based on process of use of
rules of law. This process is made out in strict procedural and procedural
forms which provide achievement of the objectives of punishment at realization
of precepts of law, protection of the rights of interested persons, protection
against possible offenses, etc. Value of special and legal, organizational and
technical aspect of use of the right is caused by the fact that it is connected
with practical activities of personnel of correctional facility, their
vocational training. It is known that the criminal executive legislation has
the purposes correction of convicts and the prevention of commission of new
crimes as condemned, and other persons. These objects are set for the
institutions executing punishment, but not before convicts. Institutions which
represent the state aspire to lowering in the course of ensuring serving
condemned punishments by use of cures the level of public danger of their
personality to it which doesn't allow commission of new crimes. The convict who
undergoes punishment at his serving isn't obliged to improve, he is only
obliged to refrain from new crimes. This duty is defined by living conditions
of the person in society.
The concept of development of a penal correction
system of the Republic of Kazakhstan till 2020 in the sphere of social,
psychological, educational and pedagogical work with convicts provides creation
of fair and effective system of incentives of convicts to law-abiding behavior
(system of "social elevators"). According to Methodical
recommendations about use of system of social elevators in correctional
facilities of Kazakhstan in the conditions of the current legislation the
purposes of use of system of incentives are socialization of the convict,
prevention of recurrent crime and creation of conditions for positive formation
of the personality. The main objectives of this system - motivation of the
convict to a law-abiding way of life and their differentiation according to
criminal and legal, social and pedagogical and psychological characteristics.
Liberalization of the criminal legislation promotes
that a considerable part of criminals is condemned to the punishments which
aren't connected with isolation from society. Statistically to imprisonment a
little more than 28% of number of all convicts are condemned now, and the
punishments alternative to imprisonment are applied to the others (in 2015
54,9% of convicts are sentenced to the punishments which aren't connected with
imprisonment, from them 28,2% already committed earlier crimes and had a
criminal record at the time of criminal prosecution). It demonstrates that the
task set by the Concept of development of criminally executive system -
expansion of scope of the punishments and other measures which aren't connected
with imprisonment to the persons who for the first time have committed crimes
and that reduction of number of citizens in places of detention and application
of this punishment only to the persons who have committed heavy and especially
serious crimes is implemented. But still punishment in the form of imprisonment
for a certain term remains to one of the most applied in the Republic of
Kazakhstan, making annually about thirty percent.
In the conditions of preservation of a tendency of a
steady humanization of criminal policy it can demonstrate growth of weight of
the committed crimes and the general deterioration in a criminal situation.
In this regard in places of detention the convicts who
have committed more serious crimes which are repeatedly judged at dangerous and
especially dangerous recurrence concentrate already now. And their specific
weight grows as they are more often kept saying to long terms of imprisonment,
are less often released ahead of schedule, respectively it leads to growth of number
of negatively characterized convicts, a complication of an operational
situation, difficulty of process of execution of criminal penalty. Considerable
specific weight in places of detention of the persons condemned for various
forms of plurality of crimes allows to raise a question of need of creation of
system of distribution of such convicts depending on characterological
parameters of their personality (social and demographic, criminal and legal,
criminal and executive signs).
Punishment in the form of imprisonment concerning the
crimes condemned for this or that form of plurality is executed in correctional
facilities of different types of the modes where convicts are distributed
depending on weight and public danger of the crimes committed by them.
Imprisonment as punishment includes the retaliatory coercion determined by
standards of the criminal and criminal and executive law. The criminal law
defines his essence, and the criminal and executive right - contents.
One of the factors defining a type of correctional
facility is establishment of the fact of serving condemned in the past of
punishment in the form of imprisonment. By the general rule earlier leaving
imprisonment is considered the person who has been condemned for the crime
committed by him to punishment in the form of imprisonment and left him in
corrective labor colony, prison, medical correctional facility, treatment and
prevention facility or in the pre-trial detention center on the basis
Criminally – the Executive Code if the criminal record for this crime hasn't
been removed or extinguished at the time of commission of a new crime.
In our opinion, unreasonably maximum security penal
colonies contain as for the first time the committed crimes, and the persons
who have committed crimes at a simple and dangerous recurrence. It is necessary
to differentiate responsibility of simple and dangerous recidivists as they
have various public danger.
All crimes condemned at various manifestations of
plurality it is expedient to distribute on the relevant institutions and to
classify on more or less uniform groups. But the criminal and executive
legislation doesn't consider classification of convicts as a correction
facility on them. It is obvious that depending on psychological compatibility,
the correct classification of convicts within one correctional facility,
establishment of the corresponding mode for each category of convicts results
of penitentiary influence depend. On the basis of requirements of psychology
and pedagogics, and also on signs of social and moral neglect of the identity
of the convict, character and degree of public danger of the committed crimes,
existence or lack of a criminal record, serving in the past of punishment in
the form of imprisonment division of persons into uniform groups for their
separate keeping both in different correctional facilities, and in them is
expedient.
From our point of view, all convicts to imprisonment
in the presence of signs of plurality of crimes should be classified on two big
groups: convicts for the first time and convicts repeatedly. Classification of
criminals in these groups can be constructed on various bases from which it is
necessary to distinguish: sociological (age, education level, an occupation,
existence of specialty, the residence, etc.) and legal (character, severity of
the committed crimes, a plurality form, duration of criminal activity, subject
to criminal encroachments, a fault form, etc.). Separate keeping of convicts on
the bases of sex and age isn't called in question, and additional
characteristics can promote their more fractional division in correctional
facility for the organization, for example, of work of convicts, training,
employment, etc. Other criterion of distribution of convicts is degree of
public danger of the personality that is expressed that convicts for the first
time to imprisonment contain separately from the convicts who were earlier
serving this sentence. But such simplified approach to an assessment of danger
of the identity of the convict is obviously not enough. In our opinion, in each
correctional facility it is isolated from each other have to contain condemned
for the first time for a single crime and condemned for the first time for
plurality of crimes.
This typology has no exhaustive character, and is
focusing, first of all for the staff of correctional facilities, at choice of
means and methods of corrective impact on convicts when serving of punishment
by them in the form of imprisonment.
It is necessary to the solution of questions of the
direction of convicts in this or that establishment already today, their
distribution on groups, crews, premises, cameras to involve psychologists,
teachers, social workers. Similar approach to keeping of convicts promotes
creation of necessary conditions for the differentiated rendering corrective
impact on the convicts belonging to different groups, pedagogical and
psychological work with them.
References:
1. Antonyan Yu. M., Kudryavtsev V. N., Eminov V. E.
Identity of the criminal. St. Petersburg.: Legal center "Press",
2004.
2. Babayan S. L. Improvement of legal regulation of
incentive institutes of change of conditions of serving sentence and type of
correctional facility//Person: crime and punishment. 2012. N 2.
3. Berezikov S. V. Serving sentence conditions in
correctional facilities should be changed//Legality. 2009. N 6.
4. Vozzhannikova I. G. Recurrence as type of plurality
of crimes. M.: Contract, 2014.
5. Malikov B.Z., Plenkin Yu.V. Isolation of convicts
to imprisonment: problems of legal expression and realization. Samara, 2005.
6. Morozov B. P. Features of reforming of system of
execution of punishments in the form of imprisonment at the present stage. Novosibirsk,
2013.