Taubaev B.R.
Doctor PhD, associate professor of criminal and legal disciplines
Zhetysu State university named after Ilyas Zhansugurov
Muratova A.Zh.
master of 2 course of Law
faculty
Al-Farabi Kazakh National University
The concepts relation of legal and penitentiary safety
Annotation. In article the
increasing role of confinement in a penal system requires guarantee of
discipline and safety of the prisoners.
The concepts “legal safety” and “penitentiary safety” stated by the
author are provided as required conditions and the result of safety provision
to processes and subjects of execution and service of caption and criminal
sentences.
Keywords: Legal safety, penitentiary safety,
criminal-executive legislation, crime in institutions of confinement, criminal
subculture.
Safety is a
condition of objective factors and subjective feelings of the actual security
of elements of spheres of activity of the person, society and state from
impacts of dynamics of injuriousness on them of the valid, not imaginary (not
existing) dangers.
Safety is
ensured, that is carried out, protected and protected. To carry out safety is
to create a condition of security, including use of security measures:
protection (the warning of application of measures of protection and
application of not retaliatory sanctions of measures of protection of safety -
preventions of the actions breaking the safety rule and measures of protection.
Safety is its implementation, and also protection and protection of actually
carried out safety measures of administrative, criminal, criminal and executive
and other liability for offenses and security measures.
Independent
versions national (the person, society, the state) mark out safety by the
following main criteria: to sets the isolated sphere of emergence and the
injuriousness of types of dangers determined by it, to their factors, on
subjects and objects of influence of injuriousness, on the subjects ensuring
safety (the person, societies, the state) [1].
Dangers (sources,
injuriousness, their dynamics) and their factors predetermine need of a type of
safety (security), means, measures, ways, subjects, legal grounds of its legal
providing. Existence isolated and the person on sources, factors of the
penitentiary sphere of emergence of injuriousness of system of its internal and
leaving it to other spheres external penitentiary dangers of processes of
execution and serving of detention and criminal sanctions is the basis of
allocation of penitentiary safety as independent kind of a homeland security of
the person, society, state in and out of the penitentiary sphere (system of
bodies and institutions, the circle of prisoners, convicts and employees,
processes of execution, serving etc.) their activity.
Mass character
and systemically of the typical, not
eliminated criminal and executive and anti-penitentiary dangers, at neediness
of regime law and order and criminal and executive safety, destroy and turn
processes of execution and serving of detention and criminal sanctions, their
participants into sources and factors of internal penitentiary dangers - a
subject of ensuring internal and external penitentiary security.
Expression of
exclusive injuriousness of the system of internal penitentiary dangers which is
materializing in the termination of the penitentiary relations of execution and
serving (repentance) of detention and criminal sanctions is their
transformation in external penitentiary dangers and their factors. A major
factor of external penitentiary dangers is the criminal organization in
institutions of the penal correction system (PCS) of sources of dangers
(prisoners, convicts, employees) materializing the injuriousness destroying the
penitentiary sphere in emergencies in institutions in criminal activity in and
out of penal correction system. Penitentiary organized crime exists in penal
correction system the part of crime as operating, leading reproducing it.
Return to society from penal institutions of the criminal sanctions of the
persons socialized in criminal society and its criminal activity which did not
undergo penitential serving - the main kind of external penitentiary dangers.
On existence of
internal and external dangers of the penitentiary sphere mark out internal and
external penitentiary security. Internal - the safety of a penal system and the
uniform penitentiary process which is carried out by it including criminal and
executive process and subjective processes of penitential serving, consisting
from: criminal and executive safety of process, subjects of execution of
detention of criminal sanctions, infrastructure facilities of penal
institutions; safety of subjective processes of serving (repentance), their
subjects (taken into custody, convicts). External - security (safety) of
objects, subjects, the relations of other spheres of activity of the person,
society and state from harmful impact of system on them of the external
penitentiary dangers defining two directions of ensuring penitentiary safety
with the state as an internal homeland security: 1) participation in ensuring
internal penitentiary security; 2) self-sufficiency of security from external
penitentiary dangers [2].
Ensuring uniform
penitentiary process of execution and serving of detention and criminal
sanctions make actions of implementation of this process, and also protection
(self-protection) and protection (self-defense) as implementation of safety or
action of providing and self-sufficiency of process and safety. These actions
represent realization of competences to safety of the penitentiary rights
making the right for penitentiary safety: 1) on personal security of life and
health; 2) on legality of criminal and executive process: its conditions, the mode
providing regime law and order of supervision, protection, searches etc.; 3) on
safety of subjective penitential processes of serving of detention and criminal
sanctions; 4) on safety of work, on fire, epidemiological safety, on safe
medical care, social conditions of keeping etc. Respectively, implementation,
protection and protection (providing) and self-protection, self-defense
(self-sufficiency) of the penitentiary rights are an ensuring and
self-sufficiency of types of internal penitentiary security: creation of
objective conditions and subjective feelings of a condition of security of
objects, participants, other elements of penitentiary process and the sphere of
execution and serving of detention and criminal sanctions from harmful to them
criminal and executive and dangers of the prisoners condemned persons,
personnel of penal correction system [3].
Providing and
self-sufficiency of the penitentiary right for repentance of prisoners and
convicts gives to execution quality penitentiary (promoting repentance and
initiating it) executions in the presence of not penitential serving and
counteraction to repentance. Penitentiary execution and its safety are ensured
by penitentiary (penitential) serving, its safety and achievement of
repentance, that is achievement of repentance creates unity of processes of
execution and serving of detention and criminal sanctions. Each taken place
repentance (correction as law-abiding serving sentence - readiness to
law-abiding social adaptation after punishment departure) becomes the act of
the self-termination of actions of the person as source of dangers and a
personal contribution of the subject of repentance to ensuring internal
penitentiary security of penal correction system institution, and thereby -
self-sufficiency of its own safety of the person. Self-sufficiency and ensuring
penitentiary execution of repentance represent a special way of providing types
of internal penitentiary security [4].
Internal criminal
and executive (operational search, administrative) security, supervising and
other activity of penal correction system and external public prosecutor's and
supervising, investigative, judicial and other public authorities penitentiary
activity is intended to anticipate directly injuriousness internal (criminal
and executive and anti-penitentiary) dangers. Bodies and penal correction
systems institutions provide internal penitentiary security, as a rule,
independently and in interaction with bodies executive and legislature of
subjects of RK, municipalities, with Commissioners for Human Rights, public
associations, the movements, law enforcement agencies. Injuriousness of
external penitentiary dangers is designed to anticipate first of all activity
of the called subjects of ensuring internal penitentiary security, and also
activities of other law enforcement, law-enforcement and human rights agencies,
bodies of executive, legislative and judicial authority of the state, civil
society for self-defense of other spheres of activity of the person, society and
state.
Society and the
state participate in ensuring penitentiary safety in two directions: in
providing internal and in self-defense from consequences of its neediness -
from the external penitentiary dangers making two parties of the uniform
providing showing in fact self-sufficiency (self-implementation,
self-protection, self-defense) by the state and society of the safety from
internal dangers of the penitentiary sphere for them. Ensuring internal
security is safety of the state - penal correction systems institutions, other
elements of the penitentiary sphere and in this sense – safety of the person,
society and state out of the penitentiary sphere. Both directions are
interconnected in counteraction to the internal and caused by them external
penitentiary dangers and are uniform in the penitentiary purposes: creation of
security of implementation and existence of repentance - the purpose, social
and legal purpose of the penitentiary sphere and social value; preservation in
society and the state of social and legal penitentiary values and potential of
realization of penitentiary function [5] by them.
The essence of
ensuring penitentiary safety consists in a materialization in the penitentiary
sphere of content of the penitentiary rights, including the right for
repentance and safety, legal principles (ideas) and reflecting them the legal
phenomena of legality, humanity, democratize (democratization of execution and
serving by participation of civil society in established by the law forms in
control, implementation of management of penal correction system of the
penitentiary process focused on repentance as its purpose), justice, equality,
repentance, safety, the legal and penitentiary culture expressing a
penitentiary essence of life, prospect and legal bases of reforming of a penal
correction system and the sphere of activity [6]. In fact ensuring penitentiary
safety is a form of manifestation and the embodiment of humanity in the
penitentiary sphere (system, Wednesday), and the actual penitentiary humanity,
including in the form of the taken place repentances of prisoners and the
condemned persons - there is an ensured penitentiary safety.
Penitentiary
safety of process, system, Wednesday and other elements of the sphere of
execution and serving of detention, criminal sanctions is systemically of safety of the person (the
individual and the personality), societies (environment) and the state (system)
in and out of the penitentiary sphere, a backbone basis which purpose is safety
of the person. If internal penitentiary security is not ensured, then
inevitable is a safety of the person, society, state out of the penitentiary
sphere from penitentiary dangers counteraction to it in and out of the
penitentiary sphere. Interconditionality of internal and external penitentiary
security and their providing is objective regularity of existence of the
penitentiary sphere and implementation by society and the state of penitentiary
function [7].
As the actual
mode, as a rule, not fully corresponds to the mode - legal model, in practice
safety of the actual mode and application of policy tools of the mode and
process of execution of detention and criminal sanctions (protection,
supervision, control etc.) is accompanied by ensuring, first of all, criminal
and executive safety - security of imperative legal actions of process of
execution of the detention and criminal sanctions defining serving and all
organization of penitentiary process and penitentiary activity. Safety of the
mode is a trans-species kind of penitentiary safety.
References:
1. Alfyorov Yu. A. Penitentiary sociology. – Domodedovo, 1995. – 177 pages.
2. Brazhnik F. S. Penitentiary right. – M.: Norm, 1994. – 176 pages.
3. Dementiev S. I. Imprisonment: Criminal and legal and corrective-labor
aspects. – Rostov-on-Don, 1981. – 45 pages.
4. Duyunov V. K. Punishment in Penal law of Russia – coercion or a
penalty?//State and right. – 1997. – No. 11. – Page 61 – 68.
5. Zubkov A. I., etc. Penal institutions in system of the ministry of
Russia: history and present. – M.: Nauka publishing
house, 1998. – 172 pages.
6. Katayeva N. A. Social work in the residential district with teenagers
inclined to offenses. – Kirov: "Vyat-slovo", 1997. – 166 pages.
7. Maximov A. Crime sociology: Who is who. – M.: EKSMO, 1997. – 454 pages.