On some aspects of parole in the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Explanations of the Supreme People's Court of the People's Republic of China: comparative legal analysis
Article 79 of the Criminal Code of the Russian Federation, which provides for the conditions for the application of parole, notes some gaps. The criteria for release are not clearly defined, and it is not aimed at preventing the commission of new crimes. These problems do not allow for a unified practice of such release and the effectiveness of punishment, which confirms the high level of recidivism in recent years. The resolution of the Plenum of the Supreme Court of the Russian Federation dated April 21, 2009 No. 8 answered only part of the questions. There are provisions in the Criminal Code of the People's Republic of China that can be taken into account when improving Russian legislation, for example, such as the orientation of this type of release to prevent new crimes, the definition of the body exercising control over the released, etc. The Supreme People's Court of China made recommendations in its Explanations "On the application of legislation on the reduction of sentences and parole" dated November 14, 2016.
In connection with the above, it is important to continue the comparative legal study of the criminal legislation and judicial practice of China and Russia in this area.
Keywords: parole, Criminal Code of the People's Republic of China, correction of convicts, prevention of new crimes.
An important area of domestic criminal policy is humanization in the field of early release from serving a sentence. In view of this, the problem of a high level of recidivism among persons released on parole is urgent. The state is not able and should not correct convicts, but it can re-socialize them <1>, since the need of society to return these persons to a law-abiding lifestyle necessitates a more active assessment of the risk factors of repeat criminality <2>.
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<1> Krainova N.A. Correction of a convicted person: the purpose or function of criminal punishment (on the issue of essence and terminology) // Eurasian Advocacy. 2019. N 2(39). pp. 60-64.
<2> Debolsky M.G. Problems of the risk of recidivism during the parole of convicts // Psychology and law. 2014. N 1. P. 44.
Thus, in 2006, the Chairman of the Supreme Court of the Russian Federation, V. Lebedev, noted the problem of recidivism, including among parolees <3>.
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<3> The number of recidivism in the criminal sphere is increasing, says Vyacheslav Lebedev, Chairman of the Supreme Court of the Russian Federation. 02/27/2006 // Official website of the Supreme Court of the Russian Federation.
In January - August 2019, every second crime in the country (56.5%) was committed by previously committed crimes (58% in 2017-2018) <4>. In Buryatia, persons released on parole in 2018 committed 288 (57%) crimes, in 2019 - 184 <5>.
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<4> The official website of the Portal of legal statistics of the Prosecutor General's Office of the Russian Federation.
<5> Judicial statistics data from the Judicial Department of the Supreme Court of the Russian Federation.
Prior to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 21, 2009 No. 8 "On the judicial practice of conditional early release from serving a sentence, replacing the unserved part of the punishment with a milder type of punishment", this type of early release was the most widely used. Thus, in 2006-2008, 360,052 convicts were released on parole (56.3% of all those released) <6>. For comparison, in 2018, 99,646 applications were considered, 49,292 (49.47%) were satisfied, and refused - 36 916 (37%) <7>; in 2019 - 92,545, of which 45,387 (49%) were satisfied, 33,468 (36%) were refused <8>.
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<6> Statistical data // Official website of the Federal Penitentiary Service of Russia.
<7> Judicial statistics data from the Judicial Department of the Supreme Court of the Russian Federation.
<8> Judicial statistics data from the Judicial Department of the Supreme Court of the Russian Federation.
At the same time, the recidivism rate continues to be high, which requires studying the successful experience of other countries.
Currently, the criminal legislation of the People's Republic of China (hereinafter referred to as the PRC) is of great interest. China is quite effective in countering crime, absorbing everything progressive, taking into account historical experience and national identity <9>.
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<9> Chanhai L., Korobeev A.I., Chuchaev A.I. The Criminal Code of the People's Republic of China: improvement in the process of implementation (by the 20th anniversary of its adoption) // Lex Russica (Russian Law). 2018. N 3(136). pp. 128-142.
In accordance with Article 79 of the Criminal Code of the Russian Federation, a person is subject to parole if he does not need to serve his sentence in full and has fully or partially compensated for the damage caused.
For example, from the analysis of 523 decisions on parole, including 486 in Buryatia, in 2018, it follows that 378 (72.3%) were satisfied, 145 (27.7%) were refused. They are more often released in the presence of: incentives - 357 (94.4%); absence of penalties - 246 (65%); petitions from the administration of the institution - 376 (99.5%).
Some authors note such shortcomings as the vagueness of the conditions regarding the behavior of the convicted person, the amount of compensation for harm, etc. <10> Judges often experience difficulties because of this.
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<10> Gracheva Yu.V. Problems of judicial discretion in the application of parole // The Russian Yearbook of Criminal Law. 2012. N 6. pp. 116 - 144.
So, in 2018, the Supreme Court of Buryatia overturned the decision of the Oktyabrsky District Court to refuse Mr. B. parole due to the fact that the repayment of five penalties was not taken into account, the nature of violations was not assessed, the conclusion of the administration and the characteristics of the psychologist on the expediency of release, attitude to work and compensation were not taken into account damage , etc . <11>
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<11> The decision of the Supreme Court of the Republic of Buryatia dated January 24, 2018 in the case N 22-258/2018 // Archive The Supreme Court of the Republic of Buryatia for 2018
Some of the issues are resolved in the Resolution of the Plenum, for example, that one should not refer to the leniency of punishment (paragraph 6), the short duration of stay in the institution, and the presence of penalties in itself does not indicate the need for further serving, etc.
The Criminal Code of the People's Republic of China (hereinafter referred to as the Criminal Code of the People's Republic of China) has a different vision of parole <12>.
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Erkhitueva T.I., Myakhanova A.N. Some aspects of institutions of probation and parole under the Criminal Code of the Russian Federation and the Criminal Code of the People's Republic of China // III International Penitentiary Forum "Crime, punishment, correction" (to the 20th anniversary of the entry into force of the Penal Enforcement Code of the Russian Federation): Materials of the participants of the International Scientific and practical conference (Ryazan, November 21-23, 2017): Collection of scientific articles: In 8 vols. Ryazan: Academy of the Federal Penitentiary Service of Russia, 2017. Vol. 3. pp. 250-252.
According to Article 81 of the Criminal Code of the People's Republic of China, those convicted after serving more than half of their sentence and showing remorse can be released if it is safe for society. Amendments to the Criminal Code of the People's Republic of China (No. 8) dated February 25, 2011 prescribe to take into account the influence of the released person on his environment and create a system for their correction by measures of public influence <13>. In China, unlike in Russia, parole is not applied to repeat offenders <14>.
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<13> Chanhai L., Korobeev A.I., Chuchaev A.I. Decree. op.
<14> Skiba A.P., Myakhanova A.N., Dondokova M.Yu. Conditional early release from serving a sentence: a comparative legal analysis of the Criminal Code of the People's Republic of China and the Criminal Code of the Russian Federation // Bulletin of the Kuzbass Institute. 2018. N 4(37). pp. 93-98.
For example, the Supreme People's Court of Guangzhou Province reported in June 2020 a decrease in the number of drug-related cases, including due to stricter controls on parole. From January to May 2020, 3,780 cases were received, a decrease of 14.52% from the previous year. In 2019, there were 10,641 cases, which is 62.13% less than five years ago. At the same time, repeat offenders are severely punished. In 2019, out of 12,774 convicts, 1,228 were sentenced to 15 years, some to death <15>.
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<15> Guangdong News.
According to Article 85 of the Criminal Code of the People's Republic of China, those released on parole are controlled by public security agencies. There is no specialized control body in Russia, which is one of the reasons for new crimes.
For example, in Buryatia, back in 2013, at a meeting on the issue "On measures to improve the effectiveness of law enforcement agencies in preventing recidivism", it was noted that the courts stopped considering the representations of the internal affairs bodies on the cancellation of parole. In 2012, 10 out of 18 submissions were left unsatisfied, 2 were returned. The lack of measures of influence does not allow for an effective response to their illegal actions. So, in 5 months of 2012, during the period of such release, 97 people committed new crimes. At the round table in 2018 The Ministry of Internal Affairs of the Republic of Belarus has again indicated the absence of a specialized body. In 2018, a total of 879 applications for cancellation were considered across the country, 374 of them were satisfied; 315 were refused <16>. In 2019, 802 petitions were considered, 342 were granted, 280 were refused <17>. In 8 months of 2018, 87 people who were released on parole committed crimes in Buryatia again (in 2017 - 79).
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<16> Report on the work of courts of general jurisdiction for 2018 // Official website of the Judicial Department at the Supreme Court of the Russian Federation.
<17> Report on the work of courts of general jurisdiction for 2019 // Official website of the Judicial Department at the Supreme Court of the Russian Federation.
In China, unlike in Russia, when a person commits a new crime, early release is subject to cancellation (Articles 71 and 86).
The Supreme People's Court of China spoke on parole in the Explanations "On the application of legislation on the reduction of sentences and parole" dated November 14, 2016. In particular, the need to take into account the nature of the crime, the amount of the fine paid, etc. (here and below is a translation of one of the co-authors from Chinese into Russian, taking into account Russian terminology, in the future it may be adjusted). It should be noted that in China, the Criminal Code is not the only source of criminal law. Along with it, judicial clarifications issued by the Supreme Court of the People's Republic of China and others are applied. <18>
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<18> Daoxiu H. Some acute questions regarding the essence of criminal law and the constitutional foundations of criminal law of the People's Republic of China // Comparative jurisprudence in the countries of the Asia-Pacific region: Materials of the International Scientific and Practical Conference: Collection of scientific articles Ulan-Ude, 2007. pp. 118 - 120.
So, in these Explanations, it is possible to recognize "sincere repentance": 1) full admission of guilt; 2) compliance with all laws, rules and regulations of the institution; 3) active participation in work, diligent performance of work duties, etc.
At the same time, the concept of "sincere repentance" does not apply to those convicted of an official offense, organization (organization, participation, assistance in crimes) of organized criminal groups, if a person has received the right to parole intentionally, using such illegal methods as personal and public influence.
It can also be perceived as an expression of sincere remorse for preventing others from committing criminal acts, technological innovations in production, scientific research, etc. A similar practice can be applied in our country.
For example, in 2020, the court released on parole an employee of the Central Research Institute of Mechanical Engineering L., convicted of high treason, for transferring information constituting a state secret abroad. He took part in the creation of intercontinental ballistic missiles and launch vehicles. According to the scientist, he sent a Chinese citizen a demo version of a software package that allows calculating the aerodynamic characteristics of hypersonic aircraft.
The provision on "technological innovations" is applicable to such persons in order to obtain early release <19>.
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<19>
Also, in these Explanations, it is recommended to pay attention to the fact that "there is no danger of recidivism", analyzing the specific circumstances of the crime, the presence of post-penitentiary support. For example, convicts under the age of 18 and people with disabilities should be released on parole in the first place.
In respect of persons who may have their sentences shortened on other grounds, priority is given in favor of parole. This issue has not been settled in Russia. Persons who do not fulfill their obligations to compensate for damage are not subject to release.
Persons who have their parole revoked usually cannot reapply for such release. Except in cases where such a person has reported a crime or has turned himself in.
Thus, the positive aspect of Chinese legislation is the orientation of parole to prevent the commission of new crimes and a direct indication of the body controlling this category of persons after release.
The experience of the People's Republic of China in the field of the application of parole from serving a sentence of imprisonment may be applicable in Russia. In this regard, it is important to continue the comparative legal study of the criminal legislation and judicial practice of China and Russia in this area.
