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CONSTITUTIONAL BASES
Constitutional right to family life within penal institutions and guarantees of implementation thereof
DOI: http://dx.doi.org/10.14420/en.2015.2.3
Vladimir Zubenko, senior lecturer at the political science chair of the International Institute of Public Administration and Management at the Russian Presidential Academy of National Economy and Public Administration, Class 1 Advisor of the State Civil Service of the Russian Federation, e-mail: [email protected].
This article is addressing the matters of implementing the right to family life (relations) for the penal institutions inmates. The main reasons are highlighted impeding implementation of this legal right by the persons falling under various categories. Particular focus is made on implementation of the right to proper confinement conditions of pregnant women and women having children under three year of age in the penal institutions. This article contains a research in the problem of retaining parent and child relations for the period when juvenile offenders are kept isolated from the society. The author is emphasizing the imperfections of law with the view to restricting the right of juvenile convicted to visits while they are enduring their sentence under sever conditions and introducing practical measures to facilitate the implementation of the minor's rights to family life within penal institutions.
penal institutions, penal detention centers, pregnant women, international acts, women having children under three year age, penal colonies, correctional colonies, family life, parent and child relations, child care centers at the penal colonies, juvenile convicted, closed-type educational and custodial institutions.
For the purposes of this article, the following terms and definitions are used. Penal institutions - penal detention centers within the penal enforcement system, penal colonies for serving sentence in the form of imprisonment by convicted adults, correctional colonies for serving sentence by juvenile convicted, special closed-type educational and custodial institutions, temporary containment centers for juvenile offenders.
Family life (relations) - is a collective term, in a certain sense, comprising such categories as parent and child relations, communication of the spouses, communication of the children and parents (carers or guardians), the right (duty) of the parents to take care of the children etc.
It is important to refer to some basic provisions of the Family Code of the
Abstract.
Keywords:
Russian Federation (hereinafter - the FC RF) and the relevant rules of the Constitution of the Russian Federation.
The family, motherhood, fatherhood and childhood in the Russian Federation shall be under the protection of the state (part 1 article 1 FC RF).
Every child shall have the right to live and to be brought up in a family insofar as it is possible, the right to know his parents, the right to enjoy their care and the right to live with them, with the exception of cases when this is contrary to his/her interests. The child shall have the right to be brought up by his parents, and to their providing for his interests, for his all-round development and for the respect of his dignity (part 2 article 54 FC RF).
The child shall have the right to communicate with both of his parents, with his grandfather and grandmother, his brothers and sisters, and also with other relatives (part 1 article 55 FC RF).
A child who has found himself in an emergency situation (who has been detained, arrested, taken into custody, placed into a medical centre, etc.), shall have the right to communicate with his parents and with his other relatives in the law-established procedure (part 2 article 55 FC RF).
In accordance with the Constitution of the Russian Federation, maternity, childhood and family shall be protected by the state. Care for children and their upbringing shall be the equal right and duty of parents (article 38). In the Russian Federation, state support shall be provided for the family, maternity, fatherhood and childhood (part 2 article 7).
Universally recognized principles and norms of international law as well as international agreements of the Russian Federation should be an integral part of its legal system (part 4 article 15).
Moreover, it is reasonable to consider the Ruling of the Plenum of the Supreme Court of the Russian Federation dated 10.10.2003 № 5 "On the general trial courts applying the universally recognized principles and rules of the international law and international treaties of the Russian Federation", which contemplates the following: in the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according to the universally recognized principles and norms of international law and this Constitution (part 1 article 17 of the Constitution of the Russian Federation).
Relying on this ruling along with the provisions of part 4 article 15, part 1 article 17 and article 18 of the Constitution of the Russian Federation, the human rights and freedoms are directly in effect subject to jurisdiction of the Russian Federation in compliance with the universally recognized principles and rules of the international law and international treaties of the Russian Federation. They define the contents, implication and application of laws, activities of the legislative and executive authorities and local self-government, and are ensured by the system of justice.
The universally recognized principles of the international law are understood to be the fundamental peremptory norms in international law (jus cogens), accepted and recognized by the international community of states in general, which are impossible to diverge from.
The universally recognized principles of the international law comprise, in particular, the principle of universal respect for human rights and principle of good-faith fulfilment of international obligations.
The universally recognized rules of the international law is understood to be a rule of conduct accepted and recognized by the international community of states in general as legally binding.
The contents of the mentioned principles and norms of the international law can be developed, particularly, in the documents of the United Nations Organization and its specialized agencies1.
We would like to consider penal institutions and inmates thereof in the context of the designated topic, being the right to family life (relations).
Persons suspected and accused of committing crimes, held in custody in detention centers:
(a) suspected and accused pregnant women and;
(b) suspected and accused women having children under three year of age;
(c) other categories (not considered herein, due to limited content).
Federal Law "Concerning the detention of persons suspected and accused of committing crimes" provides for the following rules:
"Suspected and accused women can have with them children under three year of age.
The material conditions of life at the places of detention shall be improved for the pregnant women and women having children under three year of age, arranging medical treatment and assistance in the required form and establishing the enhanced food and material allowance standards defined by the Government of the Government of the Russian Federation.
It is not allowed to restrict daily walk hours for the pregnant women and women having children under three year of age.
Neither pregnant women, nor women having children under three year of age can be subject to incarceration as the sanction.
When found appropriate, the administration of the detention institution can file a petition in accordance with the procedure established by law to transfer temporarily the child to the relatives or other persons or to place the child in the childcare center2.
Unfortunately, there is currently a lack of penal detention centers complying with the requirements of section 30 of the named Law, that is, the detention centers with "the improved material conditions of life and medical treatment and assistance arranged in the required form" (for the women falling under the certain category).
The aforesaid reasons are outwardly impeding the implementation of the personal right (contemplated by law) of the suspected and accused pregnant women and women having children under three year of age to the proper life conditions.
1See: Clause 1 of the Ruling of the Plenum of the Supreme Court of the Russian Federation dated 10.10.2003 № 5 "On the general trial courts applying the universally recognized principles and rules of the international law and international treaties of the Russian Federation".
2See: Section 30 of the Federal Law of 15.07.1995 № 103-FZ "Concerning the detention of persons suspected and accused of committing crimes".
Due to the named intrinsic reasons, such incidents arise when the woman, upon giving the birth to the child, is placed into the ordinary detention center without regard to her "special status".
In this case, the corresponding "fallback" provision of section 30 of the named Law: "when found appropriate, the administration of the detention institution can file a petition in accordance with the procedure established by law to transfer temporarily the child to the relatives or other persons or to place the child in the childcare center".
Under such extreme circumstances, a woman can be parted from her child by signing a petition (application) for her "non-coerced consent" to transfer the child under guardianship (trusteeship) of the relatives (if they have such possibility) or other persons, or to the institution for orphans and children left without parental care.
All the factors mentioned above are destroying the parent and child relations.
Due regard should be given to the constitutional principle of the presumption of innocence, extending to the persons of this category to the full extent. Moreover, for some of them the criminal proceedings can be terminated and the judgment can be acquitting.
Persons sentenced to the punishment in the form of imprisonment.
Adults sentenced to imprisonment are kept in:
- male penal colonies (for males);
- female penal colonies (for females).
In accordance with the Penal Execution Code of the Russian Federation, the convicted inmates are entitled to the certain number of telephone conversations.
In addition to it, the convicts have the right to the rigidly defined number of visits (within a year). However, due to isolated location of the penal institutions being remote from the convict's home (previous place of residence), the personal right of the convicted person to the visits of the relatives is frequently not exercisable.
In this context, it is appropriate to cite certain legal standpoints of the European Court of Human Rights, as some complaints of the convicted on violation of their rights to maintaining the family ties are recognized by the European Court to be admissible.
See, for instance, the Judgment of the European Court of Human Rights of 23.10.2014 in the case Vintman v. Ukraine (extract): "The circumstances of the case. In his application to the European Court, the applicant complained that he had been forced to serve his prison sentence far from his home, with the result that his elderly mother, who was in poor health, had been unable to visit him for over ten years. At the time of the Court's judgment, he was serving his sentence in a prison some 700 kilometers from home with a journey time that took between 12 and 16 hours. The prison authorities had repeatedly refused his requests for a transfer citing problems of space for the penal institutions inmates.
Law. As it was mentioned in the Judgment, the failure to transfer the applicant to a prison closer to home had effectively denied him any personal contact with his mother and thus amounted to interference with his right to respect for his family life, as guaranteed under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court was prepared to accept that the
interference of the public authorities was in accordance with the law and pursued the legitimate aims of preventing prison overcrowding and maintaining discipline. It was, however, disproportionate. Although the authorities had relied on the absence of available places at the institutions of confinement, they had failed to give any details and there was no evidence that they had in fact considered placing the applicant in any of the many regions closer to his home address. The applicant had been asking for a transfer since December 2001. However, the region where the applicant was transferred in December 2009 was one of the furthest from his home. It is emphasized in the Judgment that the authorities did not dispute that the applicant's elderly and frail mother was physically unable to travel to visit him in the regions where he was imprisoned. The fact of the matter was that the applicant's personal situation and his interest in maintaining his family ties had never been assessed, and no relevant and sufficient reasons for the interference in question were ever adduced.
Conclusion. The European Court found violations of Article 8 of the Convention in conjunction with Article 13 of the Convention in respect of the lack of an effective remedy for the applicant's inability to obtain a transfer to a prison closer to home.
Compensation. In accordance with Article 42 of the Convention, the European Court awarded the applicant (*) thousand Euros in respect of non-pecuniary damage"1.
Convicted pregnant women and women having children under three years of age.
The Penal Execution Code provides that "in the penal institutions where the convicted women with children are serving their sentence child care centers can be established. In such childcare centers at the penal institutions, the conditions shall be maintained as required for adequate accommodation and development of children. Convicted women can place their children under three years of age in such childcare centers at the penal institutions and communicate with them unrestrictedly when out of duty. They can be allowed to live together with their children.
With consent of the convicted women, their children can be transferred to the relatives or other persons, or upon the attainment of the age of three to the relevant childcare institutions.
If the child kept in the childcare center at the penal institution attained the age of three, provided his mother's remaining term of punishment is not exceeding one year, the administration of the penal institution can extend the period of stay for the child until the date of expiry of the mother's term of punishment.
Special medical treatment shall be given to the convicted pregnant women, convicted women during delivery and in the postpartum period"2.
It should be noted that many female penal colonies lack childcare institutions.
These intrinsic reasons are preventing the effective implementation of the above personal right of the convicted mother to stay (be kept) in the penal institution
1See: Information note on the Judgment of the European Court of Human Rights of 23.10.2014 in the case Vintman v. Ukraine. Unofficial Russian translation from English completed by Yu. Berestnev. / Consultant Plus Information Legal System. http://www.consultant.ru/.
2See: Article 100 of the Penal Execution Code of the Russian Federation.
with her child under three year of age.
Accordingly, there are various possible solutions to this issue in the law enforcement practice, namely:
1) The relevant appropriate authorities (Federal Penitentiary Service and its local agencies) can render a decision to convoy (transport) the convicted woman having a child under three year of age to the corresponding penitentiary facility that can be located in an isolated place remote from the home (family), which can constitute further impediment in exercising the right to visit of the close relatives, such as the spouse (father of the child).
2) The convicted woman takes a voluntary decision to transfer the child under guardianship (trusteeship) of the relatives or other persons.
3) Some other options that are less humane (not considered herein).
Juveniles sentenced to the punishment in the form of imprisonment and
serving the sentence in the correctional colonies.
By the moment, one cannot claim that the reliable and effective guarantees of exercising the personal right of the juvenile convict to family life (relations).
As of the beginning of 2015, there were 45 correctional colonies, scattered over the territory of the country. Earlier, there used to be 60 correctional colonies, the problem of retaining family relations being yet urgent.
In 2011, fifteen correctional colonies were closed or, to be more specific, converted (through changing the type of the penal institution) for "execution of sentence with respect to the women sentenced to the punishment in the form of imprisonment and serving the sentence in the general regime penal colonies"1.
The National Action Strategy for the benefit of children for the period 2012 -2017 was adopted by the Decree of the President of the Russian Federation dated 01.06.2012 No. 761. This document provides for the measures aimed at improving the conditions for the children while they are kept in the places of confinement and upon release. Such measures include, without limitation, the following: "Arranging the work on recovery of the relations of the children retained in the places of confinement with their families and immediate social environment and providing assistance to them in adaptation and resocialization upon release from the sentence. Developing the resocialization program for the juveniles released from the sentence and generating the state order with regard to rendering this service in a target-focused manner".
It seems that solution of the mentioned (socially important) issues can be practicable, provided that the juveniles are serving their sentence in the form of imprisonment at a reasonable distance from their "family and immediate social environment". In other words, it is likely to be achieved, if the correctional institution is as near to the place of residence of the parents (or other relatives) as possible. However, in this case, such correctional institutions should be located in the adjacent
1See: the Decree of the Government of the Russian Federation dated 01.03.2011 № 323-r "Concerning the introduction of the federal government institutions". One of the reasons for the decision (decree of the Government of the Russian Federation) appears to be lack of female penal colonies due to overcrowding of the existing penal institutions.
(nearest) constituent entities of the Russian Federation.
Such reduction in number of the correctional colonies (from 60 to 45) has intrinsically perplexed the situation in connection with weakening of the juveniles' socially useful relations and relations with their relatives. It is likely to result in detachment from the family (society) and later, upon release, in social maladjustment, affecting personality, along with physical and mental sanity. It can become one of the reasons for committing repeated offences.
In addition to it, some problems can arise with regard to implementation of the juvenile's right to release on parole.
Statutory rules and case practice of conditional early release of the convicts from punishment can show no uniform approach as to solving the question whether the certain convicted deed to serve the sentence to the full extent for his correction. It is recommended by the Plenum of the Supreme Court of the Russian Federation that when the court is considering the issue on the conditional early release, it should take into account, particularly, "the relations of the convicted with his relatives when serving the sentence"1.
It is a frequent case, however, when remoteness of the penal institution from home results in weakened (seized) family life (relations). In this context, even if the juvenile is using every effort to be law-abiding and responsible for one's behavior, he has fewer chances to early release. These factors are not contributing to his correction, creating of the positive legal awareness or his resocialization (social adaptation or integration) upon release.
It is essential that the chance of early release on parole is of great stimulating importance for the juvenile, being socially meaningful both for him and his parents (or carers).
It also is important to consider the issues related to the juvenile female convicts.
There are only three correctional colonies in the Russian Federation for the persons falling under such category. Due to this fact, most of such juveniles are demonstrably deprived of the ability to implement the right to visits, as their relatives are frequently unable to arrive for visit. Unfortunately, it is a matter of practice.
It is necessary to take a brief look at the issue concerning the contribution of the regional governmental authorities of the constituent entities of the Russian Federation and local municipal authorities to settlement of these issues.
It seems advisable that the regional governmental authorities of the constituent entities of the Russian Federation and local municipal authorities should provide assistance in implementation by the juvenile convicts of their rights to family life (visits of the relatives), such as assisting their parents (or carers) in purchasing travel
1See: Clause 5 of the Ruling of the Plenum of the Supreme Court of the Russian Federation dated 21 April 2009 (as amended on 09.02.2012) №. 8 "Concerning the court practice of conditional early release from punishment on parole, substitution of the unserved part of punishment with the lighter punishment".
tickets or vouchers and other effective forms of support1.
It appears that the ability (intention) of the juvenile convict to maintain family life (relations) can be regarded both as the personal right and as the lawful interest.
Other possible reasons impeding the implementation of the right of juvenile convicts to family life involve imperfection of penal execution laws.
Juvenile convicts declared to be malicious infringers of the security regime shall be transferred from the ordinary conditions of serving the sentence to the tighter conditions (clause 3 article 132 of the Penal Execution Code of the RF), resulting in dramatic shift of their legal status.
Firstly, only short-term visits are allowed under strict regime of serving the sentence, while long visits are not provided, that is, prohibited (article 133 of the Penal Execution Code of the RF). For reference, convicts serving their sentence under general security conditions can be allowed to accept long visits from their parents and other close relatives (up to three days, with the right to live together in the long-term visiting rooms).
Secondly, under strict security conditions, a telephone conversation can be allowed solely "under exceptional personal circumstances" (clause 3 article 92 of the Penal Execution Code of the RF). In line with the law-enforcement practice, such exceptional personal circumstances can generally involve a severe (grave) disease or death of any close relatives.
These proscriptions fail to comply with the principle of giving the primary consideration to the best interests of the child (article 3 of the United Nations Convention on the Rights of the Child), other universally recognized principles and rules of the international law.
Under the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")2, "in the interest and well-being of the institutionalized juvenile, the parents or guardians shall have a right of access" (clause 26.5).
Even broader rights are provided for the child confined by the United Nations Rules for the Protection of Juveniles Deprived of their Liberty3: "every juvenile should have the right to receive regular and frequent visits, in principle once a week and not less than once a month, in circumstances that respect the need of the juvenile for privacy, contact and unrestricted communication with the family and the defense counsel" (clause 60).
Constitution of the Russian Federation allows for restrictions of the basic
1It was recommended under the Decree of the President of the Russian Federation dated 01.06.2012 № 761 "Concerning the national action strategy for the benefit of children for the period 2012 - 2017", specifically, the regional governmental authorities were advised to adopt regional action strategies (programs) for the benefit of children (clause 4 of the Decree). Accordingly, the above measures of aid (support) in the certain constituent entity of the Russian Federation can be implemented within the scope of the regional strategy (program).
2Resolution of the UN General Assembly № 40/33 dated 29 November 1985 / Consultant Plus Information Legal System. http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=INT;n=16183.
3Resolution of the UN General Assembly No. 45/113 dated 14 December 1990 // Collection of international treaties. Volume I (Part 1). Universal treaties. - Geneva. 2002. - Pages 337-354.
(fundamental) rights solely under exceptional clauses and for the well-defined (reasonable) purposes: "Human and civil rights and freedoms may be limited by federal law only to the extent necessary for the protection of the basis of the constitutional order, morality, health, rights and lawful interests of other people, and for ensuring the defense of the country and the security of the state" (part 3 article 55).
It is useful to give due regard to the relevant legal positions provided by the Supreme Court of the Russian Federation. In particular, the Ruling of the Plenum of the Supreme Court of the Russian Federation dated 27.06.2013 "On the general trial courts applying the Convention for the Protection of Human Rights and Fundamental Principles dated 4 November 1950 and the Protocols thereto": "...in accordance with part 3 article 55 of the Constitution of the Russian Federation, the provisions of the Convention and the Protocols thereto, any restriction of the human rights and freedoms shall be based on the federal law, pursue socially important and lawful purpose (such as, ensuring social security or protecting morality, public morals, rights and lawful interests of the third parties), be necessary in the democratic society (well-proportionate to the socially important and lawful purpose pursued)".
It can be concluded from all mentioned above that depriving a juvenile convict serving the sentence under strict conditions of the right to receive long visits from his relatives is inconsistent with the aforesaid purposes of constitutional importance and, therefore, is illegal.
One should note that, under the Penal Execution Code of the Russian Federation, the mission of the penal execution laws of the Russian Federation shall include (in addition to governing the procedure and conditions of serving the sentences, designing the correctional measures for the convicted) "protection of their rights, freedoms and lawful interests, providing assistance to the convicted in social adaptation" (article 1 of the Code).
It is also important to consider the relevant principles of the penal execution laws, being "equality before law, promoting law-abiding behavior, principle of humanity" (article 1 of the Code).
Consequently, the law enforcement authorities, Federal Penitentiary Service of Russia and its local agencies (in the constituent entities of the Russian Federation) are intended to implement in the most efficient way the above statutory provisions and principles.
It also appears appropriate to point out the following.
The President of the Russian Federation adopted by the Decree of 13.10.2004 No. 1313 "Matters of the Ministry of Justice of the Russian Federation" (as amended on 04.04.2015) the Regulations of the Ministry of Justice of the Russian Federation.
In compliance with these Regulations, "the Ministry of Justice of the Russian Federation constitutes the federal executive authority exercising functions related to development and implementation of the state policy and statutory regulation. inter alia in the sphere of execution of penal (criminal) sanctions.
The activities of the Ministry of Justice of Russia are subject to the presidential control.
Russia's Ministry of Justice is engaged in coordination and supervision of the
activities of the subordinate Penitentiary Service of Russia.
Key objectives of the Ministry of Justice of Russia are as follows:
1) development of the general strategy for the state policy within the designated scope of action;
2) regulatory affairs within the designated scope of action;
3) ensuring protection of the human and civil rights and freedoms within its competence;
Russia's Ministry of Justice is acting in coordination with other federal executive authorities, regional executive authorities of the constituent entities of the Russian Federation, local agencies, non-governmental entities and associations".
Therefore, the appropriate (effective) activities carried out by the Ministry of Justice of Russia is of high social importance and legal significance for the purposes of solving multiple issues of the agenda within the review.
The Recommendations provided by the Council on Civil Society and Human Rights under the President of the Russian Federation1 are material for study of the above agenda as well.
The extract from the Recommendations of the Council is given below:
"The Council on Civil Society and Human Rights under the President of the Russian Federation, upon hearing and discussing at its special session of 5 April 2013 the Report of the Permanent Commission for Assistance to the Functioning of the Public Monitoring Committees and Reform of the Penitentiary System, presentations made by the spokesmen from Russia's Ministry of Justice, Penitentiary Service, other ministries and services, as well as experts and civil activists, can ascertain the following2.
Public inspections arranged by the members of the Council in 2012-2013 of over 100 penal institutions and penal detention centers in the Orenburg and Chelyabinsk Regions, the Republic of Karelia, the Perm Krai, the Republic of Mordovia and other constituent entities of the Russian Federation, allow to conclude that tens of thousands of convicts are currently serving their sentences in the provinces inaccessible for visits by their friends and family. It results in weakened or seized socially useful links, personal family tragedies, destruction of the social environment, which the government is relying upon at release of the convict.
With regard to the factors above, the Council deems it necessary:
In the aid of perfection of the assessment criteria for functioning of the institutions and agencies within the penitentiary system, to consider the essential criteria of appraisal of the penitentiary system institutions and local agencies to be
Recommendations by the Council on Civil Society and Human Rights under the President of the Russian Federation, adopted by the Council further to the special session (14.05.2013) on "Civil contribution to the penal and enforcement system" / Web page of the Council on Civil Society and Human Rights under the President of the Russian Federation. http://president-sovet.ru/documents/ recommendations/?CRDocument_page=3.
2It is important to emphasize that there are public monitoring committees established in each constituent entity of the Russian Federation under the Federal Law "Concerning the public oversight with respect to observance of human rights in detention facilities" and carrying out their (socially important) functions in compliance with the named Law and other statutes of the Russian Federation.
the percentage of the convicts who managed to restore the lost socially useful links, specifically, with the family.
For the purposes of maintaining and developing the socially useful links, it is necessary to take the following steps:
(a) formalize the rights of the convicts to receive visits from their de facto spouses (domestic partners), having developed the criteria to qualify a person as such de facto spouse;
(b) ensure the transition from the authorization system of arranging visits with the suspects and accused in the detention centers towards the regulatory notification-based one, where the investigating officers or the court shall submit to the detention center the list of the persons not allowed to give visits to the suspects and accused;
(c) ensure that due consideration is given to the necessity and importance of maintaining family relations and other socially useful links in the course of resolving the issue on the place of serving the sentence or transfer from one penal institution to another;
(d) ensure that mothers with good conduct evaluations shall live together with their children under the age of three years, further to the experiment proving that such living facilitates the objectives of the punishment; provide the possibility to release the women with the children under the three years of age on parole, if they have good conduct evaluations and were convicted for the crimes with no irreversible effect."
Temporary containment centers for juvenile offenders at the internal affairs agencies.
The existing laws provide for the right of the juveniles kept in the temporary containment centers to receive visits from the parents (carers) and other relatives, the number of visits being not restricted. However, sometimes it is uneasy to exercise the named right due to lack of proper visiting rooms.
For instance, as it was mentioned in the Report of the Public Monitoring Committee for observance of the human rights in detention facilities in the Altai Krai, summarizing the results of 2009, "the temporary containment center at the Chief Directorate of Internal Affairs for the Altai Krai lacks visiting room, for which cause the relatives arrived for the visit have to reside in the premises unsuitable for it"1.
Special closed-type educational and custodial institutions governed by education controlling bodies (closed-type special schools and special training establishments).
In formal terms, such institutions can also be referred to as penal ones, which is particularly proven by the provisions of international acts.
It is provided under the United Nations Rules for the Protection of Juveniles Deprived of their Liberty that "the deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial,
1See: web page of the Independent Monitoring Association (non-commercial organization) / http://www. onk-ru.info/.
administrative or other public authority".
Placing (ordering) a juvenile (minor) offender to a closed-type educational and custodial institutions (closed-type special schools or training establishments) can be effected in the following cases:
(a) upon a court sentence, if the minor is sentenced to imprisonment for committing a grave or medium gravity crime, but was released from punishment under part 2 article 92 of the Criminal Code of the Russian Federation with ordering (placing) to the special educational and custodial institution;
(b) upon the judge's ruling, if the minor committed a socially dangerous act without reaching the age of criminal discretion.
Therefore, special closed-type educational and custodial institutions are also classified as penal institutions.
The problems related to exercising the right to family life (relations) are also urgent for the named categories of minors, as the closed-type educational institutions are dotted across the territory of the country, sometimes remote from the home, parents (carers) and other relatives.
It is expedient to consider other sides of this problem as well. The right to family life (relations) shall be regarded in a broader aspect, for instance, in terms of the convict's social relations and adaptation out of prison upon regaining liberty.
At present, such terms as "social adaptation of the convicts", "social rehabilitation" and "resocialization" have come into widespread acceptance in the non-fiction and academic literature.
These definitions have various meaning, though the similar sense attached by various researchers, that is, providing assistance to the persons released from the punishment in establishing socially useful relations.
It would be helpful to provide some of these definitions.
Social rehabilitation (resocialization) is the process of re-integration of the person released from the place of confinement to the system of the concepts of social values.
Social adaptation is the process when the person in the situation of extreme gravity is readjusting intensive to the rules of conduct accepted in the society, as well as the remedial process of the psychological and moral traumas.
Resocialization of the convicts is a well-targeted process of regaining and obtaining the required opportunities and (or) abilities in terms of social life subject to law1.
The issues and problems brought up in this article call for additional thorough comprehensive impartial research, so that they could be resolved under the rule of law.
1See: Kosevich N.R. Social adaptation and social rehabilitation of the minors and activities of the commissions for the affairs of minors and protection of their rights: theoretical and practical issues. / Anthology of scientific idea: To mark the 15th anniversary of the Russian Academy of Justice: Collection of articles. - Moscow: Russian Academy of Justice. 2013. - Page 277.
LAW AND MODERN STATES 2015 / No 2
References:
1. Ruling of the Plenum of the Supreme Court of the Russian Federation dated 10.10.2003 № 5 (as amended on 05.03.2013) "On the general trial courts applying the universally recognized principles and rules of the international law and international treaties of the Russian Federation".
2. Federal Law of 15.07.1995 3 103-FZ "Concerning the detention of persons suspected and accused of committing crimes".
3. Information note on the Judgment of the European Court of Human Rights of 23.10.2014 in the case Vintman v. Ukraine. Unofficial Russian translation from English completed by Yu. Berestnev / Consultant Plus Information Legal System. http://www.consultant.ru/.
4. The Family Code of the Russian Federation.
5. The Penal Execution Code of the Russian Federation.
6. Decree of the Government of the Russian Federation dated 01.03.2011 № 323-r "Concerning the introduction of the federal government institutions".
7. Ruling of the Plenum of the Supreme Court of the Russian Federation dated 21 April 2009 № 8 "Concerning the court practice of conditional early release from punishment on parole, substitution of the unserved part of punishment with the lighter punishment".
8. Decree of the President of the Russian Federation dated 01.06.2012 № 761 "Concerning the national action strategy for the benefit of children for the period 2012 - 2017".
9. United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") (adopted on 29 November 1985 by the Resolution № 40/33 at the 96th plenary meeting of the UN General Assembly) / Consultant Plus Information Legal System.
10. United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Adopted by the Resolution of the UN General Assembly № 45/113 dated 14 December 1990 // Collection of international treaties. Volume I (Part 1). Universal treaties. - Geneve. - 2002.
11. Recommendations by the Council on Civil Society and Human Rights under the President of the Russian Federation, adopted by the Council further to the special session (14.05.2013) on "Civil contribution to the penal and enforcement system" / Web page of the Council on Civil Society and Human Rights under the President of the Russian Federation. http://president-sovet.ru/documents/ recommendations/?CRDocument_page=3.
12. Web page of the Independent Monitoring Association (non-commercial organization). http://www.onk-ru.info/.
13. Kosevich N.R. Social adaptation and social rehabilitation of the minors and activities of the commissions for the affairs of minors and protection of their rights: theoretical and practical issues. / Anthology of scientific idea: To mark the 15th anniversary of the Russian Academy of Justice: Collection of articles. - Moscow, 2013.
