CC BY
37
Execution of sentence that contains a claim
1. Религиозный экстремизм появляется во все более новых формах и охватывает различные аспекты взаимоотношений в обществе (помимо традиционных форм — наркобизнес, теневая экономика, терроризм, экстремизм и др., появилось одно из новых проявлений — торговля людьми, охватывающая собой и эксплуатацию человека, вовлечение в наркобизнес и в вооруженные конфликты).
2. Нарушение межрелигиозного мира и согласия. Источником такой опасности выступают религиозная нетерпимость, религиозный фанатизм, множественность религиозных течений, действующих в РТ.
3. Наблюдается рост криминальной активности (в экстремистко-криминальные отношения вовлекаются малообеспеченные лица, несовершеннолетние, женщины, сотрудники правоохранительных органов).
4. Сложился транснациональный характер организованной преступности.
5. Особое внимание, на наш взгляд, также следует обратить на необходимость предупредительно-профилактической работы по ликвидации религиозно-экстремистских и экстремистско-террористических сайтов в сети Интернет. Полагаем, что правоохранительные органы должны вести
систематическую пр едупредительно -пр о филактическую работу по предотвращению размещения в глобальной сети подобных пропагандистских материалов. Кроме того, необходимо противодействовать финансированию религиозной экстремистской деятельности, предотвратить использования или угрозы использования локальных или глобальных компьютерных сетей в экстремистских целях.
6. Создать в Таджикистане систему экспертных учреждений, по материалам и делам, связанным с изготовлением и распространением продукции, направленной на разжигание вражды или ненависти по национальному, местническому или религиозному признаку.
7. Подготовить список экстремистских материалов. В данный список должно включаются материалы, которые признаны судом экстремистскими. Следует учитывать и тираж продукции, и способ её изготовления и распространения. Полагаем, что формирование списка должно осуществляться не автоматически, а централизованным органом, в состав которого входили бы представители госорганов, общественных организаций, научных кругов. О существовании такого списка должны быть обязательно ознакомлены продавцы литературы, видео и аудиопродукции, работники библиотек.
Список литературы:
1. Закон Республики Таджикистан «О борьбе с экстремизмом» от 8 декабря 2003 года.//АхбориМаджлиси Оли Республики Таджикистан. - 2003. - № 12. - Ст. 697.
2. Подробнее см.: Бондаренко C. B. Национальные и националистические сетевые сообщества.//Новый стандарт. -2001. - № 1.
3. Глухарев Д. С. Борьба с экстремизмом в современном медиа-пространстве.//Материалы конф. «Феномен экстремизма и ксенофобии в современной России: факторы генезиса, путии способы противодействия». 9-10 декабря 2010 г. /редкол.: Л. В. Карнаушенко (отв. ред.), Е. О. Кубякин, Е. М. Куликов, В. Н. Ракачев. - Краснодар, 2010.
4. См. более подробно: Бурковская В. А. Правовое обеспечение борьбы с распространением экстремистских материалов в Интернете.//Право и политика. - 2007. - № 6.
Baranov Victor Alecseevich, PhD in jurisprudence, assistant professor, Honoured jurist of Russia, head of the chair "Civil and arbitral process", Financial university under the Government of the Russian Federation, Moscow, Russia
Prizhennikova Alena Nikolaevna, assistant professor of the department of "Civil and arbitral process", candidate of jurisprudence, associate professor, FSEBI of HE Financial university under the Government of the Russian Federation
E-mail: alenaprizhen@mail.ru
Execution of sentence that contains a claim
Abstract: A committed crime results in the violation of property rights, and certain personal non-property rights are damaged. The institute of civil action in criminal procedure is one of the ways to protect the rights of a person who suffered material damage and (or) non-pecuniary damage.
Keywords: criminal proceedings, civil proceedings, a claim in criminal trial, the content of the claim, enforcement order, the adversarial and equality principles, the court enforcement officer.
The scholars who research this matter find the merit of in- fact that it provides a range of advantages to a claimant (including actionable procedure into criminal proceedings in the jured person) and gives him access to justice, i. e. a possibility
145
Section 11. Science of law
guaranteed by the government to promptly turn to the judicial procedure in order to protect the rights and interests, and defend them in the statutory manner making the denial of justice impossible.
The major advantage is that it’s unnecessary to defend the violated rights and interests twice — in criminal and civil proceedings. When a civil dispute is solved within the criminal proceedings it anticipates bureaucracy and consequently reduces the number of claims under civil judicial procedure. Additionally, unjustified waste of time, efforts and facilities diminish. For instance, a claimant doesn’t need to incur extra expenses in attorneys’ fees, and witnesses needn’t give evidence twice in different proceedings. An obvious advantage is the fact that it is unnecessary to justify the claim under the civil procedure rules when the burden of proof is imposed on the claimant, and according to the RF Criminal Procedure Code the burden of proof is imposed on the prosecution under criminal procedure rules [13].
Such approach to the regulation of the injured person’s rights is in line with the provisions of the Declaration of Basic Principles ofJustice for Victims of Crime and Abuse of Power, providing that persons who suffered damages as the result of criminal offence, including bodily harm and moral damage, emotional distress, material damage or substantial restriction of their major rights, have access to judicial facilities and prompt compensation for damages in accordance with the national legislatures (paragraph 4). The member states of the UNO must try to make the judicial and administrative procedures meet the interests of the victims of crimes to greater extent, including the ways to provide possibilities “to state and consider opinions and requests at corresponding steps of proceedings in cases when their personal interests are involved without detriment to defendants and in accordance with the respective national criminal justice system”, and also “through the provision of due assistance to them in the course of the entire criminal trial” (paragraph 6, subparagraphs “b”, “c”) [1].
In the theory of criminal trial joining a criminal case and civil damage compensation case is called a joint procedure [7: 53, 58; 11, 256-264].
The institute of civil proceedings in criminal procedure has a complex character as the procedure of claim consideration is governed by the rules of the criminal procedure code, but the enforcement, and the questions of legal succession are regulated both by criminal procedure code and rules of civil procedure code, as well as by the law “On enforcement proceedings”. The knowledge of the complex character of this institute under consideration makes it possible to see clearly the legal margins of different procedures and to apply respective rules correctly.
A claim in criminal trial is an ancillary remedy for the injured person. Thus, all the questions that concern sustaining the claim refer not to major issues of the sentence provided by Article 308 of the RF Criminal Procedure Code, but to issues subject to be solved in the judicial disposition of the sentence provided by Article 309 of the RF Criminal Procedure Code.
Scholars specializing in criminal procedure law paid much attention to this procedure institute. However, the research was devoted to issues arising at the stage of pre-trial investigation of the criminal case or before the sentence is declared by the court. The issues of sentence enforcement that includes claims were left unconsidered. Additionally, the practice of sentence execution showed that there are issues requiring scientific apprehension and successive legal regulation. That’s why we support the opinion provided by legal literature that the institute of civil claimant in the criminal proceedings has not been sufficiently researched [13].
Taking into consideration the fact that the issues under consideration failed to receive clear regulation in the Criminal Procedure Code we are going to interpret them using the rules of civil procedure code and applicable Federal law “On enforcement proceedings” with regard to complex character of the action proceedings.
The first question concerns the following: to what extent the contents of an enforcement order must correspond to judicial disposition and statement of reason in the sentence. As for the sentence, the Decree № 1 as of 29.04.1996 of the Plenum of the Russian Federation Supreme Court [2] set forth that the court must provide the sentence with a full or partial justified recovery of the claim or denial of such recovery, specify the amount of recovery based on respective calculations which meet the requests of the claimant, and specify the law under which the claim is recovered. In case of a civil claim recovery imposed on several defendants, the sentence must specify which amounts have to be charged jointly and which amounts are charged severally [2]. It seems that this indication should be complemented by the provision in the statement of reason that the court must set forth the reasons under which they accept the acknowledgement of the claim. It’s necessary in order to avoid cases when the claim is unreasonably raised.
Under Article 309 Part 4 of the RF Criminal Procedure Code provision the court when establishing a judgment of conviction must resolve the claim commenced in the case. Provided it is necessary to make additional calculations related to the claim and involving a delay of court proceedings but when it does not affect the judgment on crime qualification, type of punishment and on other matters, the court may grant the claimant the right to the claim recovery and transfer the matter about the amount of damages to civil jurisdiction.
When establishing an acquittal in the absence of crime in the act or as the defendant is not implicated in the crime, the court rejects the claim. In other cases the court leaves the claim undecided (Article 306 Part 2 of the RF Criminal Procedure Code) [2].
A civil claim may also be left undecided when the claimant or his/her representative defaults to appear before the court except the cases provided in Article 250 Part 2 of the RF Criminal Procedure Code: if there is a motion from the claimant or his/her representative; if the claim is supported by the prosecutor; if the defendant fully accepts the claim.
146
Execution of sentence that contains a claim
The person who has suffered morally or physically, or from property damage due to the crime is entitled to bring an action and seek compensation for moral damage, such compensation under the law is performed in money amounts irrespective of property damage that is subject to compensation. When solving these suits one should rely upon provisions of Articles 151, 1099, 1100, 1101 of the Russian Federation Civil Code which run that when estimating the moral damage it’s necessary to take into account the character of emotional and physical sufferings inflicted to the injured person as this may be related to his or her individual features, also take into account the extent of defendant’s guilt, his/her financial standing and other specific circumstances of the case that influence the judgment in the action. In every case the estimation of the compensation amount must be done with regard to the principle of justice and proportionality [2]. However, it practically can’t be found in the court sentences as the defendant is afraid to make the situation worse trying to defeat the action so he acknowledges the claim. The court sustains the claim, and after the sentence the convict (debtor) realizes that he/she will have to pay out the compensation for the rest of his/her life, though that was no-property claim. The judges are amazed at the overestimated amounts of damages that were awarded in the sentence.
As for the compliance of claim contents it reflects only judicial disposition. We think it is improper as it’s impossible to establish the reason for succession. And according to the provisions of the new law “On enforcement proceedings" (article 40) a court enforcement officer will determine the successors.
Unfortunately, this issue has not been legislatively regulated and remains technically unprovided. Thus, Article 428 of the RF Civil Procedure Code runs that claimants are provided with an enforcement order but the content of such order is not given. In s. p.5 paragraph 1 Article 8 of the Federal law “On enforcement proceedings” it is set forth that the enforcement order reflects the judicial disposition of the decision or another authority.
Practically, in the situation when a defendant (debtor) is economically disadvantaged the execution of the sentence in relation to claim is extended to an indefinite term. The claimant dies at certain stage and his heir as a successor receives the enforcement order concerning the part of unexecuted sentence. Moreover, part of the rights can not be assigned to successors according to Article 1112 Part 3 of the RF Civil Code [3], that is why the succession here is impossible.
Can a court enforcement officer take it into consideration at the stage of procedure execution? Having the content of the enforcement order but lacking the structure of the recovery he cannot do that.
However, according to the Instruction for court office management the Supreme Courts of republics, courts of districts and territories (krai), city courts of federal jurisdiction and also regional courts must forward enforcement order to the court enforcement officer along with the copy of the sentence that shows what penalties make the final amount
of recovery. However, this provision is not practically followed, and the court enforcement officer acts under the Federal Law “On enforcement proceedings” and there is nothing said about the duty of the enforcement officer to follow the copy of the sentence (or any other court act). The law “On enforcement proceedings” [5] runs that the court enforcement officer must follow the enforcement document. It means that even though the debtor has reimbursed the damages in full, the court enforcement officer will continue the enforcement procedure to the benefit of the claimant’s successors.
The following issue that appears at the stage of sentence execution is a procedural aspect of succession in title.
Under Chapter 47 of the Russian Federation Criminal Procedure Code the courts have to decide issues connected with the execution of sentences. The court procedure for these issues is set forth in Article 399 of the RF Criminal Procedure Code.
Particularly, if the issue concerns the execution of the sentence related to civil claim recovery, the claimant and civil defendant may be summoned to the court. Application ofAr-ticle 399 Part 3 ofthe RF Criminal Procedure Code along with Article 399 Part 2 of the RF Criminal Procedure Code actually helps the court not to summon the accused (defendant) to the court and to decided at its own discretion the issue on the participation of the accused (defendant) at the hearing related to any matter related to the sentence execution identified in Article 397 of the RF Criminal Code.
In this case Article 399 Part 3 of the RF Criminal Code does not contain even an approximate list of conditions under which the court can make a decision on the participation or non-participation of the accused (defendant) at the hearings. This issue is left to be solved exclusively at the judge’s discretion who under Article 396 Part 6 of the RF Criminal Procedure Code solely considers all the cases related to the sentence execution.
Thus, Article 399 Part 3 of the RF Criminal Procedure Code actually provides the opportunity to consider any matters related to the sentence execution without the accused being present at the hearing. This is very important. This can be a mere technical matter related to the erroneous drafting of the enforcement order that resulted in its return to court by the enforcement officer. These may be matters that concern a procedural legal succession or a sentence execution cessation, the solution of such matters affects the further range of execution acts and individuals but the possibility of further execution activity.
The existing provision in the process of its realization can significantly breach the defendant’s rights to relief which is granted to him by the RF Constitution. It is due to the fact that should the defendant fail to participate in court hearings, he can realize in full his rights to defense granted to him by the RF Constitution including stated in the Criminal Procedure Code rights: the right to know the subject matter of the case, affirm a motion or communication or deny it, give evidence and explanations, file motions and denials, retain the advocate,
147
Section 11. Science of law
participate in court proceedings, appeal court acts and decisions in case of disagreement with them.
This statement is based on the fact that according to Article 399 Part 3 of the RF Criminal Procedure Code an accused is entitled to review the materials submitted to the court, participate in its consideration, file motions and denials, provide explanations, submit documents only in the case when he participates in the court hearings. Consequently, if the accused does not participate in the court hearings, he has no such rights.
The consideration of the matter concerning procedural rights succession within the execution of the relief demand of the injured person (claimant) in the absence of the accused (defendant) is a clear example that shows the possibility to breach the rights of the accused in case the court hears the case related to the sentence execution in the absence of the accused.
Part 2 of the article 123 of the RF Constitution. allows a court trial in absentia in cases provided by the Federal law. However, when such cases are identified the legislator must act reasonably so that there could be a possibility of a trial in absentia as an exclusion from the common rule. In this case Article 399 Part 3 of the Criminal Procedure Code allows the court which considers the matters of the sentence execution to make a decision even not notifying the accused (defendant), his counsel about the hearing the issues not letting them know about the arguments, not notifying about the time and venue of these issues hearings. Moreover, according to the said rule the court decision on the participation or non — participation of the accused in the court trial may be unmotivated. The remedies are provided to the defendant only in cases when the court acknowledges the necessity to grant a decision on the accused participation or non-participation at court proceedings and summons him/her to the trial. This is a deviation from the principle of equality of citizens before the law and court set forth in Article 19 Part 1 of the RF Constitution, and it’s also a restraint of the constitutional right to relief provided by Article 46 Part 1 the RF Constitution.
The accused if he/she wishes to participate in the trial cannot be deprived of this right, cannot be deprived of the possibility to file rejections and motions, study the lines of other participants of the trial and review the materials, give explanations, ask questions to the witnesses etc. These are necessary guarantees of the judicial protection and fair trial of the case at the stage of solving matters related to execution of sentences.
The right to judicial protection provided by Article 46 Part 1 of the RF Constitution is entrenched by the existence of such guarantees that allow exercise it in full and provide an effective and fair justice. One of such guarantees as applied to criminal procedure is the provision on judicial procedure on the basis of the adversarial principle and the principle of the parties’ equality set forth in Article 123 Part 3 of the RF Constitution. The adversarial and equality principles were further entrenched in Part 1 and Part 4 article 15 of the RF Criminal Procedure Code, Article 243 Part 1. These principles must be
applied at all stages of the judicial procedure. The proceedings stage when the issues related to the sentence execution must also be included. The range of procedural rights provided to parties at this stage inclusive its aims and peculiarities can be smaller than in the lower court where the criminal case is tried on the merits and the person is charged with committing a crime. However, defining the list of such rights the legislator must take into consideration constitutional requirements that concern conducting judicial proceedings under the condition of adversarial and equality principles [8].
Only in this case there will be created the necessary conditions for judicial error prevention and a fair judicial decision making.
Exception can be connected only with the defendant’s motion to consider the case in his absence or failure to appear in court of a probationer who has been notified about the time and venue of the court proceedings.
This legal position is set forth in the Russian Federation Constitutional Court in the Decree as of December 10, 1998 N 27-П on the case of the constitutionality examination of provisions in Article 335 Part 2 of the RSFSR Criminal Procedure Code, Decree as of January 15 1999 N 1-П on the case of the constitutionality examination of provisions in Article 295 Part 1 and 2 of the RSFSR Criminal Procedure Code and Decree as of February 14 2000 N 2-П on the case of the constitutionality examination of provisions in Article 337 Parts 3, 4 and 5 of the RSFSR Criminal Procedure Code. This position was further developed in decisions as of December 10 2002 N 315-O on the claim of D. T. Khudoerov, as of March 25 2004 N 99-O on the claim of V A. Vlasov, as of April 8 2004 N 132-O on the claim of A. V. Gorskiy [10].
By virtue of the RF Constitutional Court decrees the provision of second and third parts article 399 of the Russian Federation can’t be construed as admitting the lowered range of rights guarantees and lawful interests of a person executing the sentence, in the process of the court decision making which results in either cessation of sentence execution concerning claims, or further execution but on the changed conditions.
The conclusion of the RF Constitutional Court stating that Article 399Part 2 and 3 of the RF Criminal Procedure Code assume that the court upon the respective request of the accused must ensure his participation in the proceedings so that he could set forth his line and present the necessary evidence [10]. This conclusion was made to be applied to criminal punishment, so with regard to the procedure to consider procedural issues on the sentence execution as it is related to relief claim, but omissions remain. We think this problem should be solved the same way as it has been done in the above mentioned definition of the RF Constitutional Court.
The judge in the case consideration in absentia has to solve the issue on the further sentence execution where it concerns claim relief doing so on the basis of case materials which do not correspond to the actual situation in this part of the sentence, i. e. actually not on the basis of the constitutional adversarial and equality principle.
148
Execution of sentence that contains a claim
The stated above analysis of the legal regulation of succession rights makes it evident that the criminal procedure code governs not all questions of the institute under consideration at the stage of sentence execution that contains a claim. The Federal Law “On enforcement proceedings” in its turn indicates that in case of withdrawal of one of the parties (death of an individual, reorganization of a legal entity, assignment of a claim, transfer of the debt) a court enforcement officer must make a substitution this party with a successor, defined under the statutory procedure and federal law. The successor is bound to perform all activities which have been performed by the other party before the assignment [4]. Thus the court enforcement officer must be governed by the federal law as the analyzed form is a blanket form. Since the criminal procedure code fails to give answers to all arising questions, another federal law becomes the RF Civil Procedure Code which has regulated many questions of procedure.
But there is no certainty. The applicable articles 20 and 21 of the Federal Law “On enforcement proceedings” indicate some obligatory and optional reasons for the suspension of enforcement procedure. In the new law “On enforcement proceedings” [4] these are articles 39 and 40 respectively. When one of the said reasons occurs, the enforcement proceedings can be and must be suspended under the statutory rules. The same rules for procedure suspension are made in articles 436 and 437 of the RF Criminal Code. However, neither of the stated articles provides such reason as the death of the claimant. It means that after his/her death the enforcement procedure must be extended, but the question is — to whose benefit?
The death of the claimant can be the basis for the cessation of the enforcement procedure as provided in Article 23 of the Federal Law “On enforcement proceedings” (in new law respectively Article 43) and in Article 439 subpar. 3 par.1 of the RF Civil Procedure Code. But it’s said there that in case of claimant’s or debtor’s death the demands and obligations cannot be assigned to the successor of the deceased or to the person declared dead.
We think that before the issue of procedural legal succession is clearly settled, upon the death of the claimant at the stage of enforcement procedure it’s possible to be governed by the Article 215 of the Civil Procedure Code, by analogy rules provided in the Article 1 Part 4 Civil Procedure Code. This article in contrast to previously considered articles says that court must suspend the proceedings in case the person dies, if the dispute admits legal succession of rights. This is of great importance as according to Article 24 of the Federal Law “On enforcement proceedings” (Article 45 of the new law) no enforcement acts are admissible under suspended enforcement procedure. In order to be consistent in this issue, we assume that upon the cessation of enforcement procedure no enforcement acts are admissible, however, a ceased enforcement procedure cannot be initiated again in accordance with Article 439 para. 3 of the RF Civil Procedure Code.
In accordance with Article 440 of the RF Civil Procedure Code the matters concerning enforcement proceedings suspension are heard by court at enforcement officer location
(the same rule has been preserved in Article 45 of the new law “On enforcement proceedings”). Moreover, the claimant, debtor, court enforcement officer must be notified about the venue and time of such proceedings. Practically, if reasons for the succession of rights exist, the judges who have delivered the judgment just issue a new enforcement order to heirs (successors) following the provisions of Article 399 Part 2 of the RF Criminal Procedure Code which sets forth that when it concerns the sentence execution in the part of civil claim both claimant and civil defendant may be summoned to court.
Material interests of debtor are violated in such situation. What can show this? The thing is that in a new enforcement order the judge merely substitutes the name of the injured person (claimant), and all the rest is left unchanged. Taking into consideration the fact that the proceedings have never happened, court enforcement officer and the debtor can not give evidence within the case namely about the uncharged amount of money, so the enforcement order will bear the initial debt. A new claimant (successor) files a enforcement order to the enforcement officer’s service and writes a petition on a case initiation. A new enforcement proceeding is initiated, and this can be done by another enforcement officer but not the one who has been running the initial case, the debtor is requested to fulfill a new requirement not taking into consideration the fact that he (debtor) has already compensated a part of damages. This question could be settled at the level of court enforcement officers’ service but for some formal reasons. The point is that the judge when issuing a new enforcement order and not holding the hearing, fails to attach a judicial act confirming the successor, that is why the enforcement officer, initiating a new case considers him as an independent claimant not connecting the penalty with the penalties imposed earlier.
Such practice does not comply with the rules established by the RF Supreme Court Judicial Department. The subordinate act runs that enforcement documents are forwarded with the copy of the sentence (decision, court ruling) or an extract from the said in the part concerning compensation for the damages incurred through the crime [9].
However, the statutes say nothing about it. In connection with this a question is raised which concerns the legal meaning of the sentence copy for the enforcement officer and about the sentence copy default.
Section 9.2 of the Instruction devoted to sentence execution, rulings and decisions nothing is said about the contents of an enforcement order. The requirements to the contents of the enforcement order can be found in paragraph 9.3.2. of Section 9.3. of the Instruction devoted to the address to execution of decisions, rulings on civil cases. However, this is a blanket regulation since it refers to article 8 of the Federal Law “On enforcement proceedings”. But Section 9.3. of the Instruction does not include indication to forward the copies of court decisions to enforcement officer’s service.
Absolutely the same provision is available in the courts of the Russian Federation constituent entities. Particularly, the Instruction on judicial office management paragraph 12.10 states
149
Section 11. Science of law
that if the court within criminal trial indicated in the sentence the material damages caused due to the criminal act, within three-day period since the sentence took legal effect, and for appeals no later than three days from the day the case was returned from the Russian Federation Supreme Court, the enforcement documents are issued according to the number of claimants and are forwarded to a division of the enforcement officers service at the place of residence or at the place where the convicted defendant keeps his/her belongings, and the claimant is notified about the documents forwarding [6].
In this situation the possible way out is a claim against court enforcement officer actions. But formally he is right as the newly issued enforcement order conforms to the requirements of Article 8 of the Federal Law “On enforcement proceedings”, that is why court cannot invalidate his actions. It is important to admit here that the Civil Procedure Code and subordinate legislation have not provided the procedure to correct the mistakes in the enforcement order, and generally, the rules of drafting and issuing of enforcement orders.
We think that it’s difficult to accept such approach. It’s important to point out that Article 44 of the Civil Procedure Code, providing the rules of succession, failed to establish procedures so that to realize this rule at the stage of enforcement proceedings. Article 440 of RF Civil Procedure Code states the rules of enforcement proceedings suspension and cessation and not the rules of succession. That is why if the contents of Article 44 of the Civil Procedure Code is accepted literally, the court accepts the substitution at any trial stage, in other words it can be presumed that the judge is entitled to act at his own discretion and either call court hearing or not. However, a part of the Article under consideration sets forth that a ruling is made on this issue but it can be appealed. In connection with this it’s necessary
to apply Article 224 of Civil Procedure Code to this issue, that entrenches the rule about the necessity to announce the court decisions immediately after their passing. If these articles are joined to Part 4 Article 1 of Civil Procedure Code that sets the rule of analogy, it will be possible to make a conclusion that at the stage of enforcement proceedings the question of succession must be solved according to the rules of Article 440 of the RF Civil Procedure Code.
Taking into consideration the foregoing, we think that Article 399 of the RF Criminal Procedure Code requires specialization concerning issues to be decided by the judge in consideration in absentia, and at the same time consolidation of the issues that must be decided according to the civil procedure code rules, i. e. include blanket regulations in order not to complicate the contents of the criminal procedure code.
The following matter arising at the stage of enforcement is the matter of proceedings cessation. In particular, to decide which participant of the proceedings may take legal action. The point is that neither Civil Procedure Code, nor Federal Law “On enforcement proceedings” fail to identify the entities. Some judges think that only enforcement officer can initiate the consideration of such issue. We think that it can be not only the enforcement officer but any party to the case. This conclusion is based on two provisions; firstly, as it has been mentioned above, the wording of Article 24 of the Federal Law “On enforcement proceedings” and Article 440 of the Civil Procedure Code make this acceptable; and secondly, applying the analogy rule according to Part 4 Article 1 of the RF Civil Procedure Code we can apply Part 1 Article 327 of Administrative Procedure Code stating that enforcement procedure can be suspended by arbitrazh court upon the application of the claimant, debtor and enforcement officer.
References:
1. Declaration of Basic Principles ofJustice for Victims of Crime and Abuse of Power (adopted by the resolution of the UNO General Assembly 40/34 as of November 29 1985).
2. Decree № 1 as of 29.04.1996 of the Plenum of the Russian Federation Supreme Court “On court sentence” “On court sentence” № 1 (as amended from the Decree of the RF Supreme Court as of).
3. Decree № 1 as of 29.04.1996 of the Plenum of the Russian Federation Supreme Court “On court sentence” “On court sentence” № 1 (as amended from the Decree of the RF Supreme Court as of 06.02.2007 № 7) (paragraph 19).
4. Federal Law as of November 26, 2001 № 146-ФЗ “On effecting Part 3 of the Russian Federation Civil Code”.
5. Federal Law as of October 02, 2007 № 229-ФЗ “On enforcement proceedings”.
6. Federal Law as ofJuly 21, 1997 № 119-ФЗ “On enforcement proceedings” (art. 7-10).
7. Instruction on judicial office management in the Supreme Courts of the republics, territorial and district courts, city courts of federal jurisdiction, courts of autonomous regions and autonomous districts. Approved by the order Judicial Department with the Russian Federation Supreme Court as of 15.12.2004 № 161.
8. Kvachevskiy A. On criminal prosecution, depositions and pre-trial investigation of crimes under judicial statute of 1864. -SPb, 1966. - Р. 53, 58.
9. Kotsubin Yu. M. On constitutionality of the provisions of the RF Criminal Procedure Code Article 399, applied by courts during the consideration of issues related to the execution of sentences.//Russian judge. - 2005. - № 11.
10. Refer to Instruction on judicial office management in regional court. Approved by the Order of the General Director ofJu-dicial Department with the Russian Federation Supreme Court as of 29.04.2003 № 36.
11. Refer to the RF Constitutional Court Decisions as of 11.08.2006 № 351-O “On the claim of Slyusarev Vladimir Nikolaevich related to the violation of his constitutional rights by provisions of Part 2 and 3 Article 399 of the Russian Federation Criminal Procedure Code”.
150
Historical and legal basis of the russian penal policy
12. Rosin N. N. Criminal Procedure. - Pg., 1916. - Р. 256-264.
13. Russian Federation Criminal Procedure: Manual 2nd edit., amended and suppl./L. N. Baskatov (et al.) edit I. L. Petrukhin. -M.: TK “Velbi” Publ. House “Prospekt”, 2006. - Р 291.
14. Ryzhakov A. P. The concept and legal status of a civil claimant in criminal proceedings. Commentary to the article 44 of the RF/SPS Criminal procedure code “ConsultantPlus”
Pertli Larisa Fedorovna, Research Institute of the Federal Penitentiary Service of Russia,
candidate of law, Department head E-mail: larisa.pertli@mail.ru
Kaluzhina Marina Anatolyevna, Research Institute of the Federal Penitentiary Service of Russia,
candidate of law, Leading researcher E-mail: kaluzhina.marishka@yandex.ru
Historical and legal basis of the russian penal policy
Abstract: Necessity for the transformation of the Russian penal system is the subject to review. The historical and comparative analyses of the formation characteristics and maintenance of the Russian penal policy are the aim. Keywords: penal policy, correctional system, Russian penal system.
The relevance of historical and legal study of the Russian penal policy is connected with an insufficient theoretical readiness of this problem and the high degree of its demand in nowadays. The question of radical restructuring of the Russian criminal-executive system is an issue. Changes in the Russian penal policy are directed on a humanization of criminal penalties, improvement of a law basis and consecutive implementation of the international obligations in this sphere.
Nowadays the Russian society goes through the difficult period of the updating. Various spheres of social life, as well as the criminal and executive system are exposed to reforming. In this process Russia is guided by the West European experience and achievements, takes into account interests and requirements of the world community for introduction of the international standards of the treatment of inmates. It should be noted the importance of reforming of this sphere as character of criminal and executive policy.
Among the features of formation of national system of execution of criminal penalties it is possible to note quite late transition to the humanistic principles of inmates maintenance. It is known that the state seriously paid attention to the problems of legal protection being held in custody only in the second half of the XVII century. It is necessary to point out that formation and the maintenance of penal policy throughout our history was predetermined by power interests. The penal policy, along with criminal procedure and policy in the sphere of prevention of crime is one of the most important components of nation-wide policy. The state, and only it, but not any political organizations, not only has the right, but also is obliged to define policy in this sphere of the public relations and to establish the precepts of law governing these relations [1, 6].
The penal policy defines the attitude of the state to an order of penal execution. The main activities in this field, the main strategy are defined as well. Thus punishment, as the tool in hands of society for fight against crime, has to be organized so that its unprofitable sides decreased whenever possible, and that maximum of public advantage was reached without violation of the individual rights though criminal, but nevertheless the human person [2, 133]. Character of the penal policy answers the purpose fixed by law. Political goals and strategic tasks in the field of penal punishments find the expression and fixing in the standards of the criminal and executive legislation and subordinate normative legal acts regulating an order and conditions of serving of punishments in correctional institutions. The main legal form of expression of penal policy is the law.
The appeal to historical prerequisites of a humanization of the Russian penal policy allowed studying development of law bases and practical experience of the organization of conditions of keeping inmates in imprisonment places in different years of functioning of prison system of Russia. It gains a special relevance because of the studied pre-revolutionary precepts of law formed a historical and legal basis of the subsequent and modern penal legislation. In this regard the authors taking into account modern achievements of historical and legal science and the criminal and executive right carried out the comparative analysis of legal fundamentals of penitentiary policy during bourgeois modernization of the Russian society of the second half of the XIX century and modern penal policy of Russia and will put forward the thesis about objectively existing historical and legal prerequisites of a humanization of penal policy of the Russian Federation.
The conducted research allowed to group the factors which defined Russian state penal policy and had on it steady impact
151
