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Sanctions and sentencing in Russia

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Title:
Sanctions and sentencing in Russia
Creator:
Zaitchenko, Vladimir
Place of Publication:
Denver, CO
Publisher:
University of Colorado Denver
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Language:
English
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108 leaves : ; 28 cm

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Subjects / Keywords:
Sentences (Criminal procedure) -- Russia (Federation) ( lcsh )
Sanctions (Law) -- Russia (Federation) ( lcsh )
Sanctions (Law) ( fast )
Sentences (Criminal procedure) ( fast )
Russia (Federation) ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 101-108).
Thesis:
Criminal justice
General Note:
School of Public Affairs
Statement of Responsibility:
by Vladimir Zaitchenko.

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|University of Colorado Denver
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|Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
53874162 ( OCLC )
ocm53874162
Classification:
LD1190.L50 2003m Z36 ( lcc )

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Full Text
SANCTIONS AND SENTENCING IN RUSSIA
by
Vladimir Zaitchenko
J.D., Samara State University, 2000
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Criminal Justice
2003
(AL |


2003 by Vladimir Zaitchenko
All rights reserved


This thesis for the Master of Criminal Justice
degree by
Vladimir Zaitchenko
has been approved
by
Mark Pogrebin
Phil Reichel
Hj t> | 03
Date


Vladimir Zaitchenko (M.C.J., Criminal Justice)
Sanctions and Sentencing in Russia
Thesis directed by Assistant Professor Mary Dodge
ABSTRACT
So significant have been the changes in sentencing and sanction system in
Russia since the early 1990s that it is not easy to pick out principle developments. In
1996, a new version of the Criminal Code was adopted. Currently in effect, the Code
reflects the movement from a repressive soviet criminal justice model to a modem
one emphasizing legal safeguards against excessive coerciveness. Sanction system
changed significantly as well. Compared to its predecessor, the punishment section of
the Criminal Code contains numerous legal novels. The most striking are the changes
that occurred in the entire structure of sanctions. The law is vastly more complicated
and descriptive now. Legal principles of sanctioning emphasize new priorities,
reflecting the shift from old theoretical schemes that served as conceptual grounds for
sentencing.
The research presents a framework of the core elements of the Russian
sanction system as they are currently established, trends in modem sentencing policy
in Russia, and analysis of the potential ways for the systems further development.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
Signed |
Mary Dodge
IV


ACKNOWLEDGMENT
Research for this thesis was supported in part by the Edmund S. Muskie/Freedom
Support Act Graduate Fellowship Program, a program of the Bureau of Educational
and Cultural Affairs (ECA), U.S. Department of State under authority of the
Fulbright-Hays ACt of 1961 as amended, and adminstered by the American Councils
for International Education: ACTR/ACCELS (American Councils). The opinions
expressed herein are the authors own and do not necessarily express the views of
either ECA or American Councils.
I would also like to thank Dr. Mary Dodge for academic inspiration, encouragement,
and support. My appreciation also extends to Dr. Mark Pogrebin and Dr. Phil Reichel
for their academic guidence and support throughout my graduate experience.


CONTENTS
Chapter
1. Introduction.............................................................1
2. Purpose of Study....................................................... 6
3. Statement of Thesis Significance.........................................8
4. Methodology........................................................... 10
5. Sanction System of the Russian Federation............................. 12
5.1 Introduction............................................................12
5.2 Punishment..............................................................13
5.3 Goals of Punishment.....................................................16
5.3.1 Restoration of Social Justness..........................................17
5.3.2 Rehabilitation and Crime Prevention.....................................18
5.4 Types of Sanctions......................................................19
5.4.1 Death Penalty...........................................................22
vi


5.4.2 Deprivation of freedom.................................................24
5.4.3 Arrest.................................................................29
5.5 Intermediate Punishments in the Russian Federation.....................30
5.5.1 Fine...................................................................30
5.5.2 Correctional Tasks.....................................................31
5.5.3 Obligatory Tasks.......................................................32
5.5.4 Limitation of Freedom..................................................33
5.6 Supplementary Punishments..............................................33
5.6.1 Deprivation of Titles, Ranks, and Awards...............................33
5.6.2 Confiscation...........................................................34
5.6.3 Deprivation of the Rigth to Occupy Posts or Engage in Activities.......35
5.7 Special Types of Punishment............................................36
6. Sentencing in the Russian Federation...................................37
6.1 Introduction...........................................................37
6.2 General Principles of Sentencing.......................................38
6.3 Mitigating and Aggravating Circumstances...............................46
vii


6.4 Conditional Sentencing (Probation)...................................53
6.5 Parole, Amnesty, and Clemency (Pardon)...............................55
6.6 Conclusions..........................................................60
7. Changes in the Russian Penal Policy..................................65
7.1 Introduction.........................................................65
7.2 Transformation of the Sentencing Ideal...............................65
7.3 Conclusions..........................................................95
References.................................................................101
viii


1. Introduction
During the last decade the beginning of a drastic evolution of the system
of justice has taken place in Russia: this has affected its laws and structures and
the civil and criminal proceedings. At least a short outline of the basic aspects is
necessary to try to understand the evolution within the context of the profound
changes that concerned the political system at the beginning of the last decade.
One of the most remarkable points in the contemporary Russian history is
associated with the resignation of Mikhail Gorbachev as President of the Soviet
Union that took place on 25 December 1991. That was a symbolic act that
demonstrated the collapse of the old Soviet social-economic system and resulted
in the formal dissolution of the Soviet Union. The last few years of the Soviet rule
brought tremendous changes in every segment of the Soviet society. The changes
included the increase of the free flow of information and the relaxation of
censorship, attempts to modernize the economy, the institution of local elections,
proposed cuts in the size of military and its budget, and other attempts at political
reform. This political transition soon began to spin out of control. Failures in both
political and economic reforms became more and more obvious. An attempt of
1


the conservative communist wing of the Soviet Government to dismiss Gorbachev
and to get political control over the country resulted in a total loss of power by the
Communist Party and forested the final dissolution of the country.
The collapse of the Soviet Union left Russia as the largest, most powerful,
and most influential of the fifteen republics. Over the next five years a process of
dramatic change continued. Attempts were made to construct democratic
institutions, to establish a formal banking system, and to develop the outlines of a
capitalist economy. The complete reconstruction of Russian social fabric
accelerated many problems inherited from the Soviet Union and brought to life
the new ones. As a result of state wide privatization, large numbers of people
became unemployed, the majority of population suddenly found themselves
below poverty level. The fall of the Iron Curtain followed by the flow of goods
and information from the West confirmed the gap existing between the western
high life standards and the local ones. The collective frustration caused by the
social-economic instability increased significantly.
Attempts to modernize the economy and the political system in Russia
accelerated many problems inherited from the Soviet Union, and triggered the
birth of the new ones. A dramatic raise of crime was a predictable side effect of
the socioeconomic transition observed in the Russian Federation since the early
2


1990s. As a matter of serious public concern, it challenged the criminal justice
system, calling for urgent criminal policy measures.
Sanctioning is the essence of criminal policy of any country. As Robert
McKay, former dean of the New York University Law School, correctly observes:
The kingpin of the entire criminal justice system is the sanctioning process
(1976: 223-226). Indeed, a country's sanction system remains a most vivid
indicator of the changes in its criminal policy. It represents the states response to
the problem of how to deal with criminal lawbreaking. By setting up a range of
sanctions and attributing punishment to a certain crime, the state not only informs
its citizens about the limits of law abiding behavior but simultaneously provides
its law enforcement agencies with a legal framework to deal with law violations.
In 1996, a new version of the Criminal Code was adopted. Currently in
effect, it provides a solid legal basis for law enforcement efforts in combating
crime in modem Russia. As a prime and single source of Russian criminal law,
the Code also reflects the movement from a repressive soviet criminal justice
model to a modem one emphasizing legal safeguards against excessive
coerciveness. Sanction system changed significantly as well. Compared to its
predecessor, the Punishment section of the Criminal Code contains numerous
legal novels. The most striking are the changes occurred in the entire structure of
sanctions. The law became more descriptive, which in part was a response to law
3


enforcement claims for more specificity and detail of criminal law rules. Legal
principles of sanctioning emphasize new priorities. A completely new goal of
punishment is incorporated into the Code restoration of social justice.
Changes in the socioeconomic climate, new approaches in politics, and
revised criminal legislation consequently influence current penal policy. Russias
rapid transition from an authoritarian form of government to an open democratic
society, with all its legal and policy attributes, challenges traditional criminal law
concepts of punishment inherited from the soviet law school. Theoretical schemes
which served as conceptual grounds for sentencing now contradict modem
socioeconomic reality.
Modem system of punishment in Russia attracted Russian legal scholars
attention in the late 1990s. Few researchers, however, approached the subject
from a criminological perspective, as well as little effort having been made to
analyze current trends in Russian sentencing policy compared to those in foreign
countries. This area of research remains undeveloped despite substantial
theoretical interest of western criminologists in similar trends observed in
sentencing in western countries.
Facing severe economic problems, Russia is now at such a point in its
history when testing even completely new state policies (which may appear to be
effective) is not only required but desired. As deputy Neshatayeva (2001) pointed
4


it out at the international conference Russia and European Council: Together For
5 Years on International Standards of the European Convention on Protecting the
Human Rights and Basic Freedoms and the Russian Legislation about their
implementation in Russian legal practice, it is a matter of the ever-changing life
practices and readaptation... if you didnt change, you would eventually have to
pay dearly, and that from your national budget, your countrys exchequer a very
costly pleasure indeed of being conservative and averse to change.
It is, however, as important to analyze new approaches and their
outcomes, as it is to implement them in sanctioning policy.
5


2. Purpose of Study
The purpose of this study is to examine sanctions and sentencing in the
Russian Federation. This thesis is intended to frame the core elements of the
Russian sanction system as they are currently established, to identify trends in
modem sentencing policy in Russia, and to analyze the potential ways of systems
further development.
The goals of the research include gaining an overall understanding of the
sanction system in the Russian Federation as well as comprehensive insight into
the workings of the sentencing system as it is currently applied in Russia. It
explores the philosophy upon which the system is founded, how that philosophy
has evolved and diverged throughout the past decade, and how it is affecting the
sanctioning system and sentencing in Russia today.
The premise is that the foundation of the sanction system and sentencing
in the Russian Federation was strongly affected by the countrys socioeconomic
transition, which triggered structural reforms in the field of justice administration
in general, and sanctions and sentencing in particular. The scale of its impact on
sanctions and sentencing in the Russian Federation remains to be determined.
6


First, significant characteristics of modem Russian sanction system will be
examined. The work defines structural elements of sanction system and links
between them. In order to reveal the spirit of Russian sanctioning, the research
includes an explanation of the principles of its organization and functioning,
describes modem types of sanctions, and shows how the elements are all linked
together to form a comprehensive sanction system for the Russian Federation.
Various theoretical approaches to sanctioning will be reviewed to provide a
fundamental theoretical background that influenced development of modem
system of sanctioning in Russia.
Second, an analysis of Russian sentencing practices will follow. The
research examines current sentencing statistics and data which are relevant to the
process of sentencing itself. Procedural legal provisions regarding judges
decision-making will be analyzed.
Finally, the research identifies current trends in Russian sentencing policy
and changes in sanction system. Based on the outcomes of the research, a
conclusion of whether the sanction system of the Russian Federation and its
sentencing policy has changed will be made. Assuming, a positive conclusion will
be reached, the impact of the changes on the system will be estimated. The
research should also suggest prospective areas within the examined subject which
require further analysis.
7


3. Statement of Thesis Significance
Currently, sanctioning and sentencing arouse substantial academic interest
throughout the world. A great deal has been written on the subject in the United
States (e.g., Alschuler, 1978,1993; Cahalan, 1986; Cullen & Gilbert, 1982; Forer,
1994; Frankel, 1973; Frase, 1995,1997; Kern, 1995; Morrise & Tonry, 1990;
Morris, 1974; Reitz & Reitz, 1995; Tonry, 1993,1996; Uelman, 1992; Zimring &
Hawkins, 1991, 1995). English-language literature on sentencing laws and
practices in Western countries is rapidly growing (e.g. Albrecht, 2001; Ashworth,
2001; Freiberg, 2001; Lappi-Seppala, 2001; Tak, 2001; Weigend, 2001). The
literature provides a rich source of data on the variety of approaches to common
issues of sanctioning and sentencing policy faced by almost all modem nations
(Frase, 2001, p.259).
Some areas, however, remain unexamined. Russian sentencing and the
sanctioning system is one of many prospective spheres in that field that welcome
further and more attentive examination. Approaching the subject, a prospective
Western researcher faces an area that is almost completely undeveloped. Russian-
language literature is limited (Starkov & Milukov, 2001; Stanovski, 1999;
8


Zubkova, 2002), and English-language literature is almost nonexistent. As Tonry
and Frase observe: there has been little genuinely cross-national or comparative
scholarship on sentencing and sanctions in general. (2001, p. v). In regards to the
Russian Federation, the lack of scholarly work is true to its extreme. Available
data are very limited. Few attempts to collect and examine current Russian data
on sanctioning and sentencing policy have been made even in domestic literature,
and that is despite an obvious interest in the emerging criminal policy of the
Russian Federation.
Therefore, the outcomes of this research seek to fill out the existing lack of
information on Russian sanction system and sentencing. The thesis will also
address prospective areas for future research. The conclusions of the research
enhance comparative studies of sanctioning and sentencing, close the comparative
law theory gap, and invite further analysis of Russian sanctioning model and its
sentencing structure. As a first study of current sanction system of the Russian
Federation, the researchs aim is to contribute a better understanding of modem
sanctioning and sentencing.
9


4. Methodology
This research is an exploratory-descriptive study of the Russian sanction
system and sentencing. As any exploratory-descriptive study, this research seeks
to capture core aspects of the current state of the Russian system of sanctions and
sentencing as a part of social reality for which it is difficult to develop precise
measures. In order to do it, this type of studies borrows devices from the
humanities (e.g., metaphor, analogy, theme, motif) and is oriented towards
constructing meaning (Neuman and Weigand, 2000). The approach recognizes the
importance of emphasizing the social context for understanding the social world.
The exploratory-descriptive approach was chosen to conduct this study
because it is considered to be particularly appropriate for addressing subjects that
have never been examined before (Neuman and Weigand, 2000). As the literature
review indicates little has been published in the West about the Russian sanctions
and sentencing as they were established in the 1990s. Therefore, prior to any
specific studies of the subject it is necessary to establish a general understanding
of what has been done and what results have been achieved. Such knowledge can
provide an essential framework for further research. A descriptive approach
places the subject into a broader setting, thus providing a more comprehensive
and systematic perspective on sanctions and sentencing in Russia. Relatedly,
10


limited "comparison across countries and time" (Evans, 1985) is utilized in order
to illustrate the changes and to facilitate to the understanding of the current state
of sanctions and sentencing in Russia.
Approaching the subject of the research the following several steps typical
for the descriptive-exploratory research are taken. The first step involves
conceptualizing the object of inquiry. To start analyzing the system and patterns
in sentencing we have to become familiar with a setting and conceptualize what is
being studied. I start with preliminary concepts of punishment and apply them to a
specific setting of Russian sanction system and sentencing. The provisional
concepts contain implicit assumptions or organizing categories that I use to search
through evidence. Next, I locate and gather evidence through extensive
bibliographic work, searching for sources in libraries and online. Since the focus
of the research is on Russian sanctions and sentencing, I extensively use literature
in Russian. Another valuable source of legal data is the main Russian computer
legal base "Consultant-Plus" that provides online access to all sources of law in
the Russian Federation. The last step is to combine arguments to illustrate how
new Russian guidelines form a coherent framework for future sentencing.
11


5. Sanction System of the Russian Federation
5.1 Introduction
The contemporary Russian sanctioning system evolved as the product of
post-Soviet criminal law doctrine. It is deeply grounded in Soviet criminal law
tradition and simultaneously reflects the changes in socioeconomic life that have
accompanied the transition to a market economy. As a legal notion, the Russian
system of sanctions, unlike many other definitions in substentive criminal law, is
viably clear and non-controversial. Defined by many scholars (Trainin, 1929;
Piontkovskii, 1970; Galiakbarov, 1986; Naymov, 1996; Nazarenko, 2000; Starkov
& Milukov, 2001) as an aggregate of the measures of state coercion, the system of
sanctions is reflected in the Criminal Code as a list of penalties arranged in a
specific order. It is still arguable though whether the notion implies that the
systems elements within it form certain types of relations between each other or
if it is simply a list of penalties available to a judge. The analysis of the
contemporary sources of substantive criminal law suggests that approaching
sanctioning system as merely a list of penalties is fundamentally incorrect. In the
past, such views led to the formation of a distorted picture of the sanctioning
12


system, excluding some types of criminal punishment solely for the reason that
they were not listed as such in the code. Starkov and Milukov (2001) point out
that death penalty, conditional sentence, and release under condition of mandatory
labor were excluded from the sanction system of RSFSR on the same formal
ground (they were not mentioned in Article 21 of the Criminal Code of the
Russian Soviet Federative Socialist Republic (RSFSR), which contained a list of
applicable sanctions). Therefore, a more substantive approach to the sanctioning
systems definition is preferable. The substantive approach avoids the defects of a
formal definition, and also provides a theoretical framework to evaluate various
types of sanctions and to examine their interrelation and interchangeability within
the system. The issue of interchangeability of various sanctions is regarded as
particularly vital. Applying interchangeable sanctions may successfully serve the
purpose of balancing controversial goals of punishment.
5.2 Punishment
The central element of the Russian sanction system is the concept of
punishment. Article 43 of the Code defines it as the measure of State coercion
assigned by judgment of a court. Punishment shall be applied to a person deemed
to be guilty of the commission of a crime and shall consist of the deprivation dr
limitation of rights and freedoms of this person provided for by the present Code
(1996). It is the first time in the history of Russian criminal legislation that the
13


concept of punishment is clearly defined in the Code. An attempt to include a
legal definition of punishment was made in 1919. Article 7 of the so-called
Guiding Principles of Criminal Legislation of the RSFSR a prototype of the first
Soviet Criminal Code established that punishment is the measure of coercion by
means of which the government enforces the present order of social relations.
However, subsequent sources of criminal legislation did not include any
definitions. For decades punishment remained a strictly doctrinal concept which
was reflected in the legislation only by means of defining its goals. The reluctance
of the legislature to provide a sound legal definition of punishment in the Code,
on the other hand, reenforced and to some extent predetermined the ways it was
theoretically approached in criminal law doctrine. A great bulk of literature
contains teleological perspective of punishment, defining it mainly through its
goals as either punitive or rehabilitative. For example, Dementyev (1993)
suggested that punishment is a retribution intentionally imposed on the convicted
persons to make them suffer the consequences of their misconduct. Obviously,
such an approach replaces the substance of punishment with one of its goals.
The new definition included in the Code (1996) did not end the discussion,
but rather revealed new arguable aspects of the concept. As Article 43 clearly
states, punishment is the measure of State coercion, which consists of the
deprivation or limitation of rights and freedoms of the convicted person.
14


Deprivation or limitation of rights and freedoms is an entirely new notion that
still requires theoretical comprehension and further examination in legal literature.
Four substantive features of punishment are distinguished in contemporary
literature.
First, its coercive character implies that a convicted person is subjected to
the sanction regardless of his or her will. Punishment, therefore, is regarded as a
natural consequence of a conducted offense and a legitimate limitation of
convicted persons freedoms. There is a distinct causal relationship between crime
and punishment. Crime is the essential ground for a punishment to be invoked. As
principle of legality dictates, both a crime and a punishment should be statutory
prescribed. Only punishments listed in the Code may be implemented.
Second, punishment is an official state reaction to the committed crime. Its
public nature thus distinguishes it from other forms of retribution, for example,
civil liability suits. It is considered to be the States responsibility to ensure public
safety and order and to take legal action against perpetrators. Formally, publicity
of a punishment is revealed in pronouncement of sentence in the name of the
Russian Federation.
Third, criminal sanction implies personal responsibility of a convicted
person for the committed conduct. All the criminal sanctions listed in the Code
may only be applied to a person. Corporate criminal liability does not exist in the
15


Russian criminal law doctrine. To be subjected to a criminal punishment a person
should be found guilty of the commission of a crime following the specified legal
procedures.
Punishment consists of the deprivation or limitation of rights and freedoms
of a convicted person. This is the last, fourth, essential feature of punishment. It
reflects the punitive substance of punishment. The level of punitiveness is
determined by the character and degree of social dangerousness of a committed
crime as well as dangerousness of an offender (Zubkova, 2002). It is important to
maintain a balance between those categories to ensure that an offender is treated
fairly and receives a just sentence. Nikiforov stresses that punishment in its
punitive meaning implies compulsion to suffering... which is in its essence
proportionate to the crime (1978, p.128).
5.3 Goals of Punishment
Understanding current system of sanctions requires a clear idea of its
purpose. Traditionally, this idea has been approached through the notion of aims
or goals of punishment. The Code mentions them in Article 43:
Punishment shall be applied for the purpose of restoring social
justness, and also for the purpose of reforming the convicted
person and preventing the commission of new crimes.
16


In general, compared to its predecessor, the new Code underlines
rehabilitative objectives of punishment. Among the goals persuade by its
application are rehabilitation of the offender, restoration of social justness, and
crime prevention. The Code now does not mention retribution among the
punishment objectives. The wording reflects a tendency of the legislator to get rid
of the repressive rhetoric of the previous code. Legal theory still disputes the
value of retribution as a goal of punishment. Retribution, as a goal, is denied by
the majority of Russian scholars (see: Piontkovskii, 1970; Strychkov, 1978;
Zybkova, 2001). Retribution is largely perceived as an essential element of
punishment rather than its goal. Reluctance to accept that retribution does exist
both as an element and a goal of punishment could in part be explained by the fear
that otherwise retribution could be the end in itself (Remenson, 1969).
5.3.1 Restoration of Social Justness
Restoration of social justness is a new goal that was included in the Code.
It is based on the assumption that a state of social justice damaged by the
offenders conduct may be restored by implementing a reasonable, humane, and
fair punishment. Its inclusion in Article 43 to some extent reflects the current
global trend to restorative justice observed by Frase (2001) and Albrecht (1995).
It is not the retribution that is sought by the state, but rather the justice in and for
local communities and groups (Albrecht, 1995, p. 307). As a broad legal
17


construction, however, restoration of social justice incorporates a virtually
abandoned idea of retribution. Generally, retribution implies that the person who
commits a crime must pay for that crime. This notion incorporates a basic
human feeling revenge. Crimes, as wrongful human conducts, infringe upon
social justice, damage it, and spread a feeling of injustice in society if they remain
unpunished. Rarely acknowledged in present day jurisprudence, this aim of
punishment (based on the jus talionis frequently referred to as: An eye for an
eye, a tooth for a tooth) finds its ways into the modem criminal legislation.
Filimonov believes that retribution as a goal has subsequently transformed into
the goal of restoration of social justness (1996, p. 96). It would be legitimate to
conclude, that although retribution is definitely no longer the dominant objective
of criminal law, it still exists and manifests itself in a more sophisticated legal
form.
5.3.2 Rehabilitation and Crime Prevention
Rehabilitation of the offender and crime prevention represent two different
perspectives on the main criminal law objective deterrence. As Farrell notes,
there are at least two things we are typically trying to do when we punish
someone for disobeying the law: we are trying to keep them from disobeying the
law again, and we are trying to keep others from following their example. (1985,
p. 214). Rehabilitation of the offender within this context is closely linked to the
18


specific deterrence goal. It is considered to be successfully achieved if no new
cases of criminal activity are observed in the life course of the former convict.
General prevention is gained by efficient punishment implementation which by
itself should produce a restraining effect on the persons potentially inclined to law
violations.
Interestingly, the Code mentions only these three goals of punishment. It
is still difficult to determine whether they should be interpreted strictly according
to their literally meaning or if a broader interpretation is acceptable. For instance,
a goal of incapacitation, once popular, now is not mentioned either in the Code or
in recent publications on sanctions. It is arguable that incapacitation of an
offender is inherently contained in the broad notion of crime prevention reflected
in the third goal of punishment listed in Article 43 of the Code.
5.4 Types of Sanctions
Analyzing the substance of concrete punishments listed in the Code might
be helpful in capturing the true meaning of the abstract notion of punishment.
Current criminal legislation provides for 13 types of sanctions each containing a
distinct portion of state coercion.
The frame of the Russian modem sanction system is defined in the list of
penal sanctions established in Article 44 of the Code. It lists all the penal
sanctions currently applicable in the Russian Federation. The system is structured
19


in a certain order which is designed to guide a judge through the process of
sentencing. Types of punishment are listed in the article starting with the more
lenient ones orienting a judge to consider them first. It reflects the principle of
saving of repression which implies that it is important to limit repression in
pursuing the aims of punishment. For example, if the goals of punishment could
be achieved by applying a more lenient sanction the harsher one should not be
imposed. This principle was upheld by the Plenum of the Supreme Court of the
Russian Federation in resolution No. 8 of October 25, 1996.
According to Article 44, the following punishments may be applied to
persons who commit crimes:
fine
deprivation of the right to occupy specified offices or to engage in
a specify activity
deprivation of special, military, or honorary title, rank, and
government awards
compulsory work tasks
correctional tasks
limitation in military service
confiscation of property
limitation of liberty
20


arrest
keeping in a disciplinary military unit
deprivation of freedom for a determinate period
deprivation of freedom for life
death penalty
The Code introduces five new types of sanctions: compulsory work tasks,
limitation in military service, limitation of liberty, arrest, deprivation of freedom
for life. Others were slightly changed. The Russian sanction system is structured
according to the fundamental criminal law principle of distinguishment between
basic and supplementary types of punishment.
Basic punishments are all-sufficient and may be prescribed if they are
mentioned as a sanction for a particular offense in the Specific part of the Code.
Part 1 of Article 45 defines compulsory work tasks, correctional tasks, limitation
in military service, arrest, keeping in a disciplinary military unit, deprivation of
freedom for a determinate period, deprivation of freedom for life, and death
penalty as basic punishments.
Supplementary punishments are never linked to a specific offense. The
court is not obliged to assign them, but rather may choose at its own discretion to
apply one in addition to a basic punishment. Deprivation of special, military, or
21


honorary title, rank, and government awards and confiscation of property may be
applied only as supplementary punishments.
The intermediate position is reserved for the punishments that could serve
both as basic and supplementary depending whether they are mentioned as such in
the Specific part of the Code. These are fine and deprivation of the right to occupy
specified offices or to engage in a specified activity.
5.4.1 Death Penalty
According to the Constitution the death penalty will remain in the Russian
sanction system until its abolition. Article 59 of the Code maintains that the
death penalty as an exceptional measure of punishment may be established only
for especially grave crimes infringing on life. The death penalty shall not be
assigned to women, and also persons who have committed crimes at an age less
than eighteen years, and to men who have attained at the moment of rendering of
judgment by the court sixty-five years of age. The death penalty may by way of
pardon be replaced by deprivation of freedom for life or by deprivation of
freedom for a term of twenty-five years.
The death penalty abolition continues to be a vital problem in Russia and a
subject of legal and political debates. Currently, Russia as a member of the
European Union is obliged to exclude death penalty from its penal code.
However, a compromised decision was temporarily reached. Although the penalty
22


remains in the sanction system it has not been implemented since 1998. First, a
moratorium on execution was imposed in 1998. A presidential board of pardon
was used to enforce the presidential decree on moratorium. In practice, the courts
continued to impose death penalty but no one has been executed. The next step on
the way to the complete abolition of death penalty was made in 1999. The
Constitutional Court of the Russian Federation ruled the death penalty
unconstitutional since a defendants constitutional right to a jury trial could not be
provided in all case. So far, despite constitutional and procedural provisions jury
trials are established only in nine regions of the Russian Federation. However, it
is still far from the final solution of the problem. In 2004, jury trials should be
folly functional across the country and the death penalty issue will arise once
again.
Briefly, this problem is viewed from two directly opposite perspectives.
The proponents of the abolition support the Constitutional Court decision
claiming the death penalty unconstitutional but on different grounds. Its presence
in the sanction system violates universal right to life established in the
Constitution of the Russian Federation and international treaties ratified by the
Russian Federation which according to Article 15 of the Constitution have
priority over the national legislation. Other arguments presented by the
proponents of the abolition include death penalty inefficiency and insignificant
23


impact on crime control, cruelty, its contradictory nature in terms of achieving the
aims of punishment. Shestakov (1998) argues that the sole existence of death
penalty in the Russian penal system makes the entire system more severe.
The proponents of the death penalty in support of their position refer to the
public opinion on the problem and to high crime rates which according to their
beliefs require the death penalty as the most effective deterrence. Some authors
(Starkov & Milukov, 2001) refer to the American experience in this field. They
argue that the death penalty is still widely implemented in the United States and
conclude that it is deemed to be effective and should not be abolished.
5.4.2 Deprivation of Freedom
Deprivation of freedom in the Russian Federation may be imposed as life
imprisonment and imprisonment for a determinate period of time. Life
imprisonment is a new type of punishment regarded as an alternative to death
penalty. Therefore, the spectrum of potential cases when life imprisonment can be
implemented is limited to the offenses punished by a death penalty. Currently,
there are six such conducts. Life imprisonment can be imposed by a judge or as a
result of clemency. Being an alternative to death penalty, life imprisonment can
not serve as an independent penalty. As a death penalty alternative it also has
some limitations such as a limited circle of persons who could be subjected to it.
Article 57 part 2 maintains that deprivation of freedom for life shall not be
24


assigned to women and also to persons who have committed a crime at the age of
seventeen years old or younger, and men who have attained sixty-five years of
age at the moment of the rendering of judgment by the court. Some scholars argue
that it would be desirable to alter limitation on the implementation of life
imprisonment. Starkov and Milukov (2001) believe that increasingly imposed life
imprisonment could provide a successful measure in combating crime. Their
position is based on the assumption that current criminal code altering death
penalty as a sanction for some grave offenses does not provide an adequate
alternative, which could only be life imprisonment (2001, p. 32). They cite data
supporting the argument that this type of sanction is popular in Europe. American
practice regarding this issues also is widely presented. However, they emphasize
that the American approach can not be taken for granted. For example,
deprivation of freedom for life when imposed on juvenile offenders is deemed to
be excessive (Starkov & Milukov, 2001).
Deprivation of life for a determined period, as well as life imprisonment,
consists of the isolation of the convicted person from society by means of sending
him or her to a colony-settlement or premise in a correctional colony of general
strict or special regime or to a prison. Length of imprisonment varies and is linked
specifically to an offense, however, it may not be less than six months or more
than 20 years. This is a general rule. Exceptions can be made if it is assigned in
25


the event of the replacement of correctional tasks or limitation of freedom. In this
case deprivation of freedom may be for less than six months. Another exception
from this rule is allowed in the event of the partial or full composition of periods
of deprivation of freedom when assigning punishments for the aggregate of
crimes and judgments. In that case the maximum period of deprivation of freedom
may not be more than twenty-five years, and for the aggregate of judgments, more
than thirty years.
Persons sentenced to deprivation of freedom are assigned to a range of
correctional institutions. Several criteria are used to determine which type of
correctional institution is chosen: gravity of an offense, degree of guilt, gender,
and prior convictions of a person. According to Article 58 of the Code, persons
sentenced for crimes committed through negligence to deprivation of freedom for
a term not exceeding five years shall be assigned to serving their terms in colony-
settlements. Persons sentenced for the first time to deprivation of freedom for the
commission of intentional crimes of minor or average gravity and grave crimes,
as well as persons sentenced for crimes committed through negligence to a term
longer than five years, serve their sentences in correctional colonies of general
regime. Three categories of convicts serve their sentences in correctional colonies
of strict regime: persons who committed especially grave crimes for the first time,
recidivists, especially dangerous women-recidivists. Life imprisonment is served
26


in colonies of special regime. Especially dangerous men recidivists are also
assigned to correctional colonies of special regime. These four types of
correctional facilities vary in the degree of security and personal freedom
limitations. Criminal Execution Code specifies the conditions and regimes in each
type of correctional institutions. Transfers from one type to another is allowed but
should be authorized by the court in accordance with criminal-executory
legislation.
Deprivation of freedom for a determinate period of time is considered to
be the most widely and frequently implemented type of sanction in the Russian
Federation. In 1970s, this punishment was imposed in 60.5% of cases. By 1999,
the number of cases had dropped to 34% of total punishments imposed (Dzigar,
2001). However, it should be noted that in absolute figures the number of
offenders punished with deprivation of freedom consistently increased in 1990s.
Imposition of deprivation of freedom is crime specific. Thus, considering specific
offenses, the portion of the cases when an offender was punished by
imprisonment is even greater. Consider the following data: 41.1 % of the
offenders convicted for stealing or extortion of weapon, ammunition, explosive
substances, or explosive devices were sentenced to imprisonment (the rest 58.9%
were sentenced to other types of punishment that did not involve deprivation of
freedom). For violent crimes the numbers are even higher: 56.1% of the offenders
27


convicted for hooliganism under aggravated circumstances, 84.7% of the
offenders who committed theft under aggravated circumstances, and 96.2 % of
persons who were found guilty of murder were sentenced to imprisonment
(Zybkova, 2001).
There are several reasons why deprivation of freedom is excessively used
in Russia. Traditionally, it represents one of the major penal sanctions. In the
1970s the percentage was even higher. The Code altered some punishments such
as exile and banishment, which were no longer thought to be effective. New types
of sanctions introduced by the 1997 Criminal Code, require significant financial,
management, and human resources. Given the situation, imprisonment appeared
to be one of the few sanctions that does not require substantial reconstruction of
the entire structure of sanctions implementation in the Russian Federation. Prison
infrastructure existed since pre-Soviet times and with slight modernization
continues to serve the needs of criminal justice system.
Justifying the increasing imprisonment rate, Starkov and Milukov (2001)
make another observation. They explain that current imprisonment rate does not
adequately represent the actual situation with imprisonment in Russia. Offenders
serve their sentences in a variety of facilities that differ from each other
depending on regime, level of security, and degree of freedom limitations. Current
statistics are based on the assumption that all the facilities where deprivation of
28


freedom is served should be included. However, Starkov (2001) argues that not all
the facilities imply sufficient level of security and degree of freedom limitations.
Colonies represent that type of low security level facilities. An offender serving
his or her time in such a facility is not required to stay there all the time. He or she
is permitted to study, have extra money, and live with his or her family. But most
importantly, they do not provide a key function of deprivation of freedom -
isolation of the offender from the community. Taking all these arguments into
consideration it seems justifiable to exclude colonies from prison statistics.
Moreover, colonies could serve as a basis for developing an alternative system of
intermediate sanctions, since all the infrastructure is already in place and
adequately functioning.
5.4.3 Arrest
Arrest is a new type of punishment introduced in 1997. It consists of
confinement of the convicted person under conditions of strict isolation from
society for a very short period of time from one up to six months. Its execution
is postponed until the conditions required for its implementation are created. The
available literature on this type of sanctions suggests that its effectiveness still has
to be tested. Short terms of incarceration are considered to be ineffective when it
comes to the purpose of rehabilitation. Even though the main idea is to subject
offenders to a very short but intense type of punishment which ideally should
29


produce a strong effect on their behavior and deter them from committing crimes
in the future. Strict isolation has to ensure that a convicted person will not
assimilate criminal values which prison settings are notorious for and thus a
conviction will not give a start to criminal career development.
5.5 Intermediate Punishments in the Russian Federation
As it has been pointed out already, Russia ranks first in the international
community for the extent to which imprisonment is prevailing in sentencing. The
introduction of new types of sanctions was an attempt to change the situation for
the better. These alternatives were intended to reduce the imprisonment rate by
means of substituting incarceration with sanctions that do not require isolation of
a convict from the rest of the community. So far, the problem of overcrowding in
Russian correctional institutions has been solved by means of either conditional
sentencing or amnesty for certain categories of offenders.
5.5.1 Fine
Under the present criminal law, courts have broad discretion in imposing
fines. A fine is defined as a monetary sanction assigned within the limits provided
for by the Code in an amount corresponding to the determined quantity of
minimum amounts of payment for labor established by legislation of the Russian
Federation at the moment of the assignment of punishment or in the amount of
earnings or other revenue of the convicted person for a determined period. The
30


amount of fine is determined by two groups of factors: one related to the
seriousness of crime and the other to the financial situation of the offender. It
may be imposed as an amount that is equivalent to the minimum monthly wage
(MMW) defined in the federal legislation or as an equivalent of the offenders
income. The general part establishes the minimum and maximum fines ranging
from 25 MMWs to 1000 MMWs or up to a full offenders income for a period of
two weeks to one year whichever is higher. Concrete sums, however, are
determined by a judge. A fine should be paid no later than 30 days after it is
imposed. The Code requires a judge to take the financial situation of the offender
into account not only in order to determine an amount to be paid but also when it
comes to determining the timeframe within which a fine should be paid. Offender
may claim for rescheduling the actual payments if their financial situation does
not allow them to pay all the fines in full. In such a case, a judge may provide an
offender with up to one year to pay off the fine. If the fine is not paid, it may be
converted into other types of punishment, such as compulsory work tasks,
correctional tasks, or arrest. These punishments may be imposed for up to their
own maximums as they are defined for that particular offense.
5.5.2 Correctional Tasks
Before the current Criminal Code took effect in 1997, the major
intermediate type of punishment consisted of correctional tasks. Correctional
31


tasks are served, by a convict at the place of work. Basically, a person is neither
isolated from the society nor removed from routine work. Convicts continue
carrying out their job responsibilities and are being paid. The earnings of the
convicted person are subject to withholding which are made to the revenue of the
State. A court has the discretion to define the exact amount of withholdings with a
prescribed set of limits, that is, from 5 up to 20%. In the event of the evasion of
serving this punishment the court may replace the unserved part with punishments
that include incarceration.
Correctional tasks have a great punitive potential and it is generally
accepted that this type of punishment should be widely applied in current
conditions. So far, it has been applied in less than 5% of cases (Zybkova, 2001).
5.5.3 Obligatory Tasks
Obligatory tasks are similar to correctional tasks. This type of punishment
is new in the Russian sanction system. Obligatory tasks consist of unpaid socially
useful (community) work that the convicted person is conducting during his or her
after work hours. The type of a community work is determined by the responsible
municipal agencies. The number of hours to be served is determined by the court
with the prescribed limits of from 60 up to 240 hours which is served not more
than four hours per day. Execution of this sanction is postponed till the facilities
required for its implementation are in place.
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5.5.4 Limitation of Freedom
Limitation of freedom is another new sanction among intermediate
punishments. It consists of the confinement of the convicted person in a special
institution without isolation from society under conditions of the effectuation of
supervision over him. This type of punishment is intended for persons who
committed either crimes through negligence or intentional crimes if the offender
has no prior records of conviction. The range of terms vary from one year up to
three for persons without prior convictions and to from one year up to five for
others. As in the case of obligatory tasks, implementation of this type of
punishment is postponed. The system of special institutions required to start
applying these sanctions is not available yet. Thus, it is still impossible to evaluate
the potential of this type of punishment in Russia.
5.6 Supplementary Punishments
Deprivation of a special, military, or honorary title, class rank, and State
awards, and confiscation of property can only be applied as supplementary types
of punishments.
5.6.1 Deprivation of Titles, Ranks, and Awards
Deprivation of a special, military, or honorary title, class rank, and State
awards may only take place when a person is convicted for committing a grave or
33


especially grave offense. The second formal ground for applying this punishment
is the personality of the guilty person.
5.6.2 Confiscation
Confiscation of property is the compulsory seizure without compensation
to the ownership of the State of all or part of the property which is the ownership
of the convicted person. In this case, the nature of a crime is considered to be a
crucial factor. A court should find mercenary motives in the offenders criminal
conduct. Gravity of an offense is another factor taken into consideration.
Confiscation may be applied only in the case of grave or especially grave crimes.
Unlike the deprivation of a special, military, or honorary title, class rank, and
State awards confiscation may only be assigned if the Special Part of the Code
respectively cites it to be applicable as a sanction for a specific criminal conduct.
Not all the property could be subject to confiscation. Exclusions are listed in the
attachment of the Criminal-Executory Code of the Russian Federation.
The effectiveness of confiscation, as well as fines, in current
socioeconomic conditions in the Russian Federation is arguable. The majority of
convicts hardly have any means to support their families and themselves.
Therefore, imposing sanctions of purely financial nature is unrealizable. A failure
in executing these types of sanctions is attributed to poverty of the majority of
Russian population.
34


5.6.3 Deprivation of the Right to Occupy Posts
or Engage in Activities
Deprivation of the right to occupy determined posts or engage in
determined activity is a traditional punishment which was adopted from the
previous Criminal Code which can be both supplementary and basic. It prohibits
the occupation of posts in State service, agencies of local self-government, or to
engage in a determined professional or other activity. Cases when this punishment
is used only as a basic one are rare. In 2000, only 102 out of 1,201,600 persons
were sentenced to this type of punishment. As a supplementary punishment it is
applied more frequently 0.2 % of all persons convicted in 2000 (Zybkova,
2001). Usually, the deprivation of right to occupy determined posts or engage in
determined activity is linked to the specific offense when either the crime was
committed due to the position of an offender or it is considered important to limit
access of an offender to a specified activity or both. A judge has the discretion to
sentence an offender to the deprivation of right to occupy determined posts or
engage in determined activity if he or she deems the retention of the right to
occupy the determined posts or to engage in a determined activity to be
impossible even in cases when this punishment is not listed as a sanction for a
particular offense.
35


The deprivation of right to occupy determined posts or engage in
determined activity is established for a term of one to five years as a basic type of
punishment and for a term of from six months up to three years as a
supplementary type of punishment.
5.7 Special Types of Punishment
An isolated group of sanction is comprised of punishments designed for
offenders performing military service. Limitation in military service is similar to
correctional tasks in way that a convict performs his duties in the military and up
to 20% of his monetary maintenance is subject to withholdings made to the
revenue of the State.
Confinement in disciplinary military unit is served by military servicemen
for the commission of crimes against military service listed in a special part of the
Code and should not exceed two year of confinement.
36


6. Sentencing in the Russian Federation
6.1 Introduction
Understanding the contemporary sentencing process in Russia requires a
knowledge of general principles of the assignment of punishment. These core
rules for imposing punishment evolved as basic sentencing criteria that a court
should observe in order to choose just and fair punishment among the range of
available sanctions. In Russia it is established in a form of legal imperative, which
cannot be changed other than through another legislative initiative. The rules are
incorporated into the Criminal Code, which, as it has been already mentioned
above, comprises the sole source of Russian criminal legislation. The Code
devotes one chapter entirely to the issues of sentencing. Chapter 10 contains
general principles of assignment of punishment and specific rules for assignment
of punishments in cases that involve aggravating or mitigating circumstances,
recidivism, attempt, and conspiracy. Special rules that regulate assignment of a
conditional sentence, terms of probation, and grounds for relief are also included
in the chapter.
37


6.2. General Principles of Sentencing
General principles of assignment of punishment are at the basis of the
sentencing phase of a criminal trial. They serve two distinct functions. First, the
principles fill the sentencing stage with the penal policy substance. General
principles reflect the penological ideas that society currently supports. As the
following examination will show, in Russia, as in the majority of the countries,
there is no single penological rationale used for the purposes of punishment
justification. On the contrary, Russian sentencing conveys a mixture of sentencing
models, and features of each of them may be found in the general principles.
Second, the principles serve as safeguards limiting the courts potential for
prejudice and arbitrariness. Some of the principles directly limit judicial
discretion and some of them, although designed without such an intent, still may
produce a similar impact upon it.
Article 60 of Chapter 10 contains three basic principles that aim to ensure
that punishment is just, legal, and humane. The principle of legality as one of the
main principles of law receives a peculiar meaning when applied to sentencing.
Article 60.1 of the Code declares that a punishment shall be assigned to an
offender "within the limits provided for by the respective Article of the Special
Part of the present Code and taking into account the provisions of the General Part
of the present Code." Normally, sentencing takes place within the limits set by the
38


penalty scale for the specific offense. The degree of such a limitation is different
in each particular case. First, a judge has to find a respective article of the Special
Part that contains a definition of the committed crime. Its sanction may differ
depending on the offense. The majority of sanctions are either alternative or semi-
defined. Alternative sanctions imply that the respective article provides for more
than one type of punishment. For instance, unlawful deprivation of liberty shall be
punished by either arrest or deprivation of liberty (part 1 of article 127). A judge
has a choice between two types of punishments to apply in this case. A semi-
defined sanction is the amount of a specific type of punishment provided for in a
respective article. For instance, in the above mentioned example the sanction of
article 127 also specifies the length of arrest and deprivation of liberty. Therefore,
a judge has some discretion regarding the amount of punishment to prescribe. In
any case, a judge's discretion is limited to a certain degree by the type of
punishment and its length or amount. Both are predetermined and are fixed in the
Code by the legislator. Taken in comparison with other countries' approaches
towards sentencing, Russia consistently employs a statutorily determined
sentencing model. The American belief that indeterminate sentencing might be
the most efficient way to accomplish goals of punishment has never been shared
in Russia, although, in many ways indeterminate sentencing may be considered a
very efficient system. It contains a substantial degree of an official's discretion
39


and thus is flexible enough to accommodate changes in correctional policy.
However, it is exactly that large degree of discretion that makes the indeterminate
sentencing model subject to various and quite valid criticism. Uncontrolled
discretion may be exercised randomly, arbitrary, or invidiously and thus produce
extreme disparities in sentencing (Tonry & Hatelstad, 1997). This is only one
reason why indeterminate sentencing has never been considered officially as a
sentencing rationale in Russia. Giving a Sentencing judge such an unconditional
authority would be considered a violation of the general principle of legality.
According to that principle, decisions should be made in compliance with the law
and shall not be based on judge's personal beliefs. However, the legislator
recognized the danger of another extreme sentencing practice also typical in
American system. Mandatory sentencing has its history in Russia. During the
early years of the Soviet state, criminal legislation of the time provided for
mandatory sanctions. The judge in certain cases had no discretion when it came to
assigning a specific sentence for a committed offense. Such an approach has its
negative side effects. The major one is the complete elimination of
individualization of punishment. It is believed that a punishment should fit the
crime. Crimes are committed in various situations and in different sets of
circumstances. Personal characteristics of the offender also have a certain impact
on the degree of social dangerousness of the committed conduct. Therefore, to
40


ensure that a punishment is just it should relate to a crime and reflect the guilt of
an offender. Mandatory sentencing fails to consider any of these factors and, thus,
fails to accomplish just adjudication.
The principle of legality ensures another peculiar characteristic of the
current sentencing model in Russia. Compared to the models predominant in the
United States, Russian sentencing structure is more rigid and uniform. Unlike
American criminal law, criminal law in Russia entirely remains in federal
jurisdiction. The principle of legality requires that all court decisions regarding
assignment of punishment should fulfill the requirements that are established both
in the Criminal Code of the Russian Federation and in the Code of Criminal
Procedure. Federal codes requirements are applied to all courts regardless of their
location. Strict implementation of the principle of legality provides for uniformity
in sentencing practices. Another factor to consider is the continuing efforts of the
Supreme Court of the Russian Federation to ensure the uniformity of the lower
courts' sentencing decisions. The uniformity is accomplished due to the Supreme
Courts authority to review sentences that are assigned by the lower courts on the
grounds of their legality.
The next general principle that governs judges through the process of
assignment of punishment is justness. Article 60.1 declares that "a just
punishment shall be assigned to a person deemed to be guilty in the commission
41


of a crime." The criminal Code of RSFSR did not specifically emphasize this
principle although it was recognized in the soviet criminal law doctrine. It is
precisely that doctrinal concept which now can be found in Article 60. A goal of
the assignment of a just punishment is accomplished by observing the following
rules. First, the character and degree of social danger of the crime should be
evaluated. Notions of character and degree of the social danger of the crime
constitute the basis of criminal law doctrine. Traditionally, legal scholars refer to
the character of social danger when the task is to distinguish one socially
dangerous conduct from another. Thus, the character of social danger varies
depending on the type of social relations that are endangered by the criminal
conduct. This legal category helps to compare the dangerousness of different
crimes. For example, a crime of homicide is more socially dangerous than a crime
of theft, because the subject of homicide is the life of a person, which is under
greater state protection than property, which is the subject of theft. Consistency of
the criminal legislation therefore requires the legislator to ensure that crimes
which by their character are more socially dangerous should be punished more
severely than crimes which are less socially dangerous. Sentencing judges
consider the character of social danger when assigning the punishment for
committing two different offenses. Undoubtedly, the punishment for homicide
42


and theft should be more severe, than the punishment assigned for two aggravated
thefts.
The degree of social danger comes into play when two similar types of
crimes are compared. Both endangered the same type of social relations and thus
are indistinguishable by the character of their social danger. An example could be
two homicides, that were committed with different set of mens rea. Assume for
example, that one was committed intentionally, and the other was committed
through negligence. Obviously, the degree of social danger differs significantly
between the two. Intentional homicides is believed to be punished more severely
because an offender had a specific aim to kill the victim, while in the other case
there was no such aim. Therefore, the degree of social danger usually refers to the
intensity of the conduct and could be best estimated by means of such notions as
guilt and blameworthiness of an offender.
The personality of a guilty person shall be taken into account as well.
Soviet criminal legislation plainly recognized this principle in Article 37 of the
Criminal Code of the RSFSR. Russian sentencing continues to consider
rehabilitation as one of the primary goals of punishment. In part 3 of Article 60 of
the Code, the legislator secured one of the means to accomplish rehabilitation. An
offender is viewed as a person with deformed social values that could and should
be corrected. The criminal justice system then, ideally, should function as a
43


mechanism thats purpose is to improve the deformed social values of an
offender, reform him, and bring back to the society. The influence of the
punishment that is assigned for reform of the convicted person also takes into
account the conditions of his family. Reference to the interests of the offender's
family which should be also considered during the assignment of a punishment
has never been made before. Obviously, conviction of a family member
significantly affects the entire family. Criminal legislation orients the court to
prevent extensive suffering of the offender's family, and to preserve, when
possible, family connections. It, thus, provides additional means for rehabilitation
of an offender.
Just punishment also implies that the circumstances both mitigating
punishment and aggravating punishment are considered. A list of these
circumstances is contained in Articles 61 and 63 of the Code. In this respect,
current criminal legislation does not differ from the legislation that has been
previously in effect.
The third principle of assignment of punishment ensures that a guilty
person receives a humane punishment. Humanism in the current criminal
legislation is a unique characteristic in contrast to the previous Code. Article 60.1
declares that "a more severe type of punishment from among those provided for
the crime committed shall be assigned only in the event when the less severe type
44


of punishment can not ensure the achievement of the purposes of the
punishment." This principle guides a sentencing judge and requires him to
consider less severe types of punishment first. And only when the social danger of
the committed crime, or the personality of a guilty person, suggest that less severe
punishment can not ensure the achievement of the purposes of the punishment, a
more severe sanction shall be chosen. Another manifestation of the examined
principle may be found in part 2 of Article 60 of the Code. It states that "the
grounds for the assignment of a less severe punishment than is provided by the
respective article of the Special Part of the present Code for the crime committed
shall be determined by article 64 of the present Code." By this provision, the
legislator ensures the possibility to assign a less severe punishment than the one
found in a respective article of the Code. In some cases, it may be unjust to punish
a guilty person within the limits offered by the sanction of respective article.
Under the circumstances listed in Article 64 a sentencing judge may depart from
the statutorily determined sanctions and assign a less severe one. Other than
carrying a substantial humane potential this provision gives additional meaning to
individualization of punishment and accomplishing the rehabilitative goal of
reforming the convicted person who is deemed to be conductive to the
rehabilitative efforts of the system.
45


In certain cases the court may pass a sentence that is below the prescribed
minimum. The first concerns the general grounds for reduction. This arises if the
offender was between 15-16 years of age at the time of the offense, and in some
cases of diminished responsibility, aiding attempt, excessive self-defense and
necessity. When these grounds apply, the court may pass a sentence that is below
the prescribed minimum. The maximum penalty is reduced by one-fourth. In
addition, the courts have general authority in exceptional circumstances (other
than those mentioned above) to impose a sentence that is less than the prescribed
minimum (Criminal Code, chapter 3, sec. 5 [2]). There are no circumstances
under which the court may exceed prescribed maximum.
6.3. Mitigating and Aggravating Circumstances
Traditionally, the role of mitigating and aggravating circumstances in
criminal law was to tailor the punishment to the crime during the sentencing
phase. The new criminal code devoted four articles in chapter 10 to circumstances
mitigating and aggravating the sentence. The presence of each of them may
significantly influence the final decision as to the amount of punishment that shall
be imposed on the offender.
Compared to its predecessor, the Russian Criminal Code provides a more
extensive list of circumstances mitigating the punishment. Ten of them are listed
in part 1 of Article 61 of the Code. These include:
46


committing a crime as a consequence of the accidental confluence
of circumstances; the minority of the guilty person;
pregnancy;
the existence of young children with the guilty person;
the commission of crime by virtue of the confluence of arduous
living circumstances or by reason of compassion;
the commission of a crime as a result of physical or mental
compulsion or by virtue of material, employment, or other
dependence;
the commission of a crime when violating conditions of the
lawfulness of necessary defense, detention of a person who
committed a crime,extreme necessity, substantiated risk, or
performance of an order or instruction;
unlawfulness or immorality of behavior of victim which was the
occasion for the crime; acknowledgment of guilt, active facilitation
of eliciting of crime, unmasking of other conspirators in crime, and
search for property acquired as a result of the crime;
rendering of medical and other assistance to victim immediately
after the commission of the crime, voluntary compensation of
property damage and moral harm caused as a result of the crime,
47


and other actions directed towards amelioration of the harm caused
to the victim.
The sentencing judge may consider other circumstances of the crime to be
mitigating even if they are not listed in part 1 of the article. Therefore, the Code
actually provides for an unlimited number of circumstances that if the judge
decides may be considered mitigating. The principle of humanism which, as it has
been stated before, governs the entire process of assignment of punishment.
The circumstances mentioned in part 1 of the article include new ones
which have not been previously recognized. For example, the fact that an offender
had young children has never been legally considered to be a mitigating factor.
However, Russian courts have considered it when assigning a sentence long
before it was incorporated into the Code. Slight difference was made regarding
the provision that unlawful or immoral behavior of the crime victim might
constitute a mitigating factor. Earlier, solely the fact that a victim behaved
unlawfully or immorally was not enough to justify a reduction in sentence. An
offender was required to prove that such a behavior caused him to loose
emotional control over his actions and thus facilitated in the commission of a
crime. Current criminal legislation made this requirement obsolete.
Circumstances aggravating the punishment should be revealed during the
sentencing stage of a trial. Aggravating factors are specified in the Article 63 of
48


the Code. A judge considers the following list of factors as circumstances
aggravating the punishment:
repeatedness of crimes, recidivism of crimes;
ensuing of grave consequences as result of commission of crime;
commission of crime as part of group of persons, group of persons
by prior collusion, organized group, or criminal society (or
criminal organization);
especially active role in commission of crime; involvement of
persons in commission of crime who suffer grave mental
disturbance or are in a state of intoxication, and also persons who
have not attained the age from which criminal responsibility
ensures;
commission of crime for reasons of nationality, racial, or religious
hatred or enmity, revenge for the lawful actions of other persons,
and also for the purpose of concealing another crime or facilitating
the commission thereof;
commission of a crime with respect to a person or his relatives in
connection with the effectuation by this person of his employment
activity or the fulfillment of social duty; commission of a crime
with respect to women known by the guilty person to be in a state
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of pregnancy, and also with respect to a youth, other defenseless or
helpless, or person dependent upon the guilty person;
commission of a crime with special cruelty, sadism, mockery, and
also torment of the victim; commission of a crime with the use of a
weapon, ammunition, explosive substances, explosive devices or
those imitating such, specially manufactured technical means,
poisonous and radioactive substances, medicinal and other
chemical-pharmacological prescriptions, and also with the
application of physical or mental compulsion;
commission of a crime under conditions of an extraordinary
situation, natural or other social calamity, and also in the event of
mass disorders;
commission of a crime by taking advantage of confidence in the
guilty person by virtue of his employment position or contract;
commission of a crime with the use of the uniform or documents of
a representative of power.
The above listed factors constitute an exhaustive index of circumstances
aggravating the punishment. The judge may not consider any other factors, which
are not listed in Article 63 as aggravating. Compared to its predecessor, the Code
of 1996 contains a considerably expanded list of aggravating factors. For
50


example, now a judge is obliged to attach aggravating significance to the role that
an offender played during the commission of the crime, as well as to the use of
weapons, explosive materials, and other means that may considerably facilitate
commission of a crime. Some of the definitions became more specific. A court is
also deprived of its previously recognizable right to disregard some of the
aggravating factors if other circumstances of a crime called for it.
Some aggravating circumstances are already incorporated into the corpus
delicti of a specific offense. In such a case, a court may not consider these
circumstances twice, because by including them in the legal definition of a crime,
the legislator accordingly adjusted the amount of punishment to be imposed on an
offender. Generally, these circumstances correspond to those found in Article 63.
All of them are taken out of the context of a specific crime and gathered in the
General Part of the Code. Therefore, there is no need to analyze definitions of
each offense that are included in the Special Part in order to make any general
conclusions about the aggravating factors.
The Code of 1996 introduced new means for further individualization of
justice. Under exceptional circumstances the court may assign a milder
punishment than provided by the Code for a particular crime. These exceptional
circumstances must relate to the purposes and motives for the crime, the role of
the guilty person, his or her behavior during or after the commission of the crime,
51


and other circumstances which significantly reduce the social danger of the crime.
The active assistance of a member of a group in the eliciting of this crime may
also serve as grounds for significant reduction in the amount of punishment.
Given the above mentioned circumstances the court may assign the punishment
which is lower than the lowest limit provided for by the respective article of the
Special Part of the Code, or the court may assign a milder type of punishment
than provided by the article, or the court may choose not to apply a supplementary
type of punishment that would otherwise provided as obligatory.
Since the institution of jury trials was introduced into the Russian criminal
justice system, the criminal legislation had to be significantly remodeled to
achieve its incorporation. New rules of criminal procedure provide for the jury's
right not only to decide if a person is guilty of the crime, but also to make
recommendations to the judge regarding the sentence to be imposed on the
convicted person. The jury may decide that offenders are guilty in the commission
of a crime but they deserve leniency. Under these circumstances the judge must
impose a sentence which may not exceed two-thirds of the maximum term of the
most severe type of punishment provided for the crime committed. If the
respective article of the Special Part of the Code provides for the death penalty or
for deprivation of freedom for life these types of punishments shall not be applied.
The jury also may find that a convicted person deserves special leniency. In this
52


case the judge must assign a punishment which is less repressive than the
punishment provided for in the respective article of the Special Part of the Code,
following the rule for assignment of milder punishment than would otherwise be
provided for a particular crime.
Special rules are established for the assignment of punishment for an
uncompleted crime. Under the notion of an uncompleted crime, the legislator
recognizes both preparation for a crime and attempted crime. In the case of the
preparation for a crime, the punishment may not exceed half of the maximum
term of the punishment prescribed for a completed crime. Attempted crime is
punishable for a term that should be within the limits of three-quarters of the
maximum term of the most severe punishment provided for a completed crime. In
no case can a death penalty and deprivation of freedom for life can be imposed for
the preparation for a crime or attempted crime.
6.4 Conditional Sentencing (Probation)
Conditional conviction is recognized in Russian criminal legislation.
Commonly known in many countries as probation, conditional conviction is
assigned if the court decides that the reform of the convicted person is possible
without serving punishment. In the event of a conditional conviction, the Code
demands that the court takes into account the character and degree of social
danger of the crime committed and the personality of the guilty person, as well as
53


all the mitigating and aggravating circumstances presented in the case. It
establishes a probation period during which the conditionally convicted persons
must by their behavior prove their reform. The court may also place on the
convicted person the performance of determined duties: not to change permanent
place of residence, work, or study without informing a specialized agency
effectuating the reform of the convicted person; not to visit determined places; to
undergo a course of treatment for alcoholism, drug addiction, toxicomania, or
venereal disease; or effectuate material support for the family. The list of duties
which the court may place on the conditionally convicted person is not limited to
the above mentioned ones. During the probation period, the court upon the
recommendation of the agency effectuating control over the behavior of the
convicted person may vacate fully or partially or supplement the duties previously
established for the offender. If before the expiration of the probation period
conditionally convicted persons have proven their reform by their behavior, a
court may decree to vacate the offenders. If the offenders have evaded the
performance of the duties placed on them by the court or have committed a
violation of public order for which an administration sanction was imposed, the
court may prolong the probation period, but for not more than one year. In the
event of systematic or malicious failure to perform by offenders during the
probation period the duties placed on them by the court, the court may decree that
54


conditional conviction be vacated and the punishment assigned by the judgment
of the court be executed. If the offenders commit another crime through
negligence or intentional crime of minor gravity during the period of probation it
is up to the court to decide whether they may continue on probation or the original
punishment should be executed. However, if an intentional crime was committed
during the period of probation the original punishment should be executed.
6.5 Parole, Amnesty, and Clemency (Pardon)
Although offenders may be found guilty of a crime, sometimes it is better
to relieve them from criminal responsibility and/or punishment. There might be
various rationales supporting this claim. First, principles of humanism deter us
from punishing a person if either offenders after committing a crime showed that
their behavior has improved, or if the situation has changed so dramatically that it
might be inappropriate or even cruel to punish a person for a conduct which took
place in the past. Second, in some cases it might be more beneficial to society if
instead of punishing criminals, it allows them to eliminate the negative impact of
his crime, for example by means of compensation or restitution to the victim.
Incorporating the reasoning given above, the Code considers five sets of
circumstances to serve as legitimate grounds for relief from criminal
responsibility:
active repentance
55


conciliation with victim
change of situation
expire of periods of limitation
Active repentance implies that offenders, after committing a crime,
voluntarily acknowledge their guilt, facilitate the eliciting of the crime, and
compensate the damage caused by the crime. Only an offender who for the first
time has committed a crime of minor gravity is eligible for relief under the above
mentioned circumstances. The same eligibility criteria applies to the offender who
is seeking relief on the ground of conciliation with the victim or change of
situation. Reconciliation with the victim is a new concept adopted in Russian
criminal legislation. Shown to be effective in other countries, it is considered to
have the potential to significantly reduce the case load, that is faced by the courts,
to prevent reoffending, and to extend a victim's rights to receive adequate
compensation for the harm caused as a result of an offense. Change of situation as
grounds for relief from criminal responsibility appeared in post-soviet criminal
legislation in the 1990s. Due to rapid social-economic changes some acts
previously considered criminal lost their social dangerousness. A typical example
may be the crime of speculation (spekulyatziya), i.e., buying consumer products
and selling them in order to get unearned profits. After liberalization of the
Russian market the crime of speculation, although still in the Code, lost its
56


socially dangerous character due to a change of situation, and, therefore, a person
who has committed it should be relieved of criminal responsibility. The concept
of limitation has always been recognized in Russian criminal law. It represents a
humane approach towards offenders who committed their crimes sometime in the
past but have lived law-abiding lives since then. Normally, periods of limitation
slightly exceed the maximum lengths of imprisonment, that are specified for a
respective offense. For instance, a period of limitation should not exceed two
years if the respective crime is of minor gravity, i.e., punishable by deprivation of
freedom for a term of up to two years. The only exceptions to this rule are crimes
against the peace and security of mankind (e.g., genocide, ecocide, war crimes,
etc.). Persons charged with committing these offenses may not seek relief from
criminal responsibility on the grounds of expiration of periods of limitation.
The Code recognizes four sets of circumstances which serve as grounds
for relieving a person from a punishment:
conditional-early relief from serving punishment
substitution of unserved part of punishment by milder type of
punishment
illness
deferral of serving punishment by pregnant women and women
having children under the age of eight.
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Conditional-early relief in Russia is analogous to parole granted by the
American system to the convicted persons for their good behavior while they are
serving their time in the institution. Granting an early relief the Code considers
not only the offender's record, but also introduces some formal requirements
regarding the time actually served in the correctional facility. In this sense, the
Code utilizes American truth in sentencing schemes which require that offenders
serve no less than a predetermined term of years in prison before they are granted
the right to be considered for parole. In Russia, the terms which should be actually
served in prison closely correspond to the gravity of the offenses. Conditional-
early relief may be applied only after the convicted person has served not less
than half of the term of punishment for a crime of minor or average gravity, not
less than two-thirds of the term for a grave crime, and not less than three-quarters
of the term for an especially grave crime. In any case, the actual serving of a term
of deprivation of freedom should not be less than six months. If a person is
serving a life-term imprisonment he or she may be eligible for parole only after he
or she serves at least 25 years. After the relief is granted the offender is required
to remain under supervision just as in the case of probation.
Another method of rewarding an offender's good behavior is the
substitution of a milder type of punishment for the unserved portion of his
punishment. After serving one-third of the term an offender may be eligible for
58


such a substitution. The above described grounds for relief from punishment are
designed to promote rehabilitation of an offender and his or her compliance with
correctional terms and conditions. The other two grounds are used mainly for
humanitarian reasons. To be relieved on the grounds of illness an offender should
suffer a mental disturbance that deprives him of the possibility to be aware of the
actual character and social danger of his actions, or to direct them. It means that
after committing a crime the offender acquires serious mental illness which makes
him or her unable to comprehend the nature of his or her conduct or gravely
affects his or her ability to act consciously. Other grounds for relief in connection
with illness may be another grave illness, not necessarily mental illness. In both
cases, a court may grant relief from serving punishment by an offender suffering
from an illness. Pregnant women remain under state care even if they are found
guilty of committing a crime. Therefore, they are granted a temporary relief from
punishment until their child attains eight years of age. The same rules apply to
women who already have children under the age of eight. When the child attains
eight years a court then decide whether to relieve the convicted mother from the
remaining part of the sentence or to return her to the institution.
A few words should be said about such institutions as amnesty and
clemency or pardon. An amnesty is declared by Russian parliament, the State
Duma of the Federal Assembly, with respect to an individually indefinite group of
59


persons. Persons who committed a crime may be relieved from criminal
responsibility and punishment, a punishment may be reduced or replaced by a
milder type of punishment, or such persons may be relieved from a supplementary
type of punishment. The record of conviction may be removed from persons who
have served a punishment by an act of amnesty.
Pardon may be granted by the President of the Russian Federation with
respect to an individually determined person. A person convicted for a crime may
be relieved from the further serving of punishment or the punishment assigned to
him or her may be reduced or replaced by a milder type of punishment by an act
of pardon. The record of conviction may be removed from the person who served
punishment by an act of pardon.
These two measures of penal policy adjustment has been known to
Russian criminal law long ago the Code of 1996 was enacted. Controversial by
nature amnesty, just as clemency, still plays an important role in sentencing
providing additional flexibility to the system.
6.6 Conclusions
Post-soviet criminal law regulation of sentencing phase of a trial has
changed significantly. The changes affected both general principles of assignment
of punishment and specific rules which regulate assignment of conditional
sentence, terms of probation, and parole.
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General principles of assignment of punishment not only lost their
socialist rhetoric, as it was noticed by some Western authors, but also changed in
their substance. Reformulated old principles carry new meanings which
emphasize more humane approach towards sentencing in the Russian Federation
and direct the court to impose a punishment that is more offender-oriented. Issues
such as individualization of punishment, its proportionality, and capacity to
rehabilitate an offender have acquired more attention in the current Code than
ever before. Increased number of mitigating circumstances in Article 61 also point
in the same direction. Thus, the analysis of respective provisions of both present
criminal code and its predecessor discloses a tendency towards further
humanization and liberalization of sentencing in Russia. At the same time, there is
evidence that the criminal code also has been amended with several more
repressive provisions. A more extensive list of aggravating circumstances is one
of them. Repressiveness of the Code is not an end in itself, of course. Those
amendments aimed at securing the rights of a victim and society in general.
General principles were designed in an attempt to ensure that two prime purposes
of punishment are achieved: the best possible efforts are made by the criminal
justice system to rehabilitate an offender and the interests of victims and the rest
of law abiding members of Russian society are secured.
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Another important observation is that despite revolutionary socioeconomic
changes that occurred in Russia during the last decade, legislation on sentencing
tends to develop evolutionary. Legislation certainly responds to the challenges
presented by new socioeconomic conditions developed in the country. One of the
most vivid examples is the inclusion of the jury in the decision making process
during sentencing. The aim of this institution is to make the process more
democratic. Although sentencing entirely rests in the court competence, a judge
now is required by law to adjust sentence accordingly if a jury decides that an
offender deserves leniency. How this provisions of the Code will effect the
sentencing process in Russia is still a matter of academic discussion. Jury trials
have not been established across the country yet, and data regarding their impact
on sentencing is not available. However, starting this year the concept of judicial
reform suggests that jury trials start functioning in the majority of federative
subjects of the Russian Federation. Thus, the data will soon be available for
analysis.
Although amnesty and pardon do not relate to assignment of punishment
by a judge their impact on sentencing in Russia is considerable. Amnesty remains
an important means used by the state to correct its penal policy if necessary. As
mentioned above, in Russia, only the State Duma enacts the amnesty decree.
Therefore, it is always a matter of political debate and not just a criminal justice
62


measure used for the purposes of penal policy adjustment. Amnesty is still a
symbolic act that is usually proclaimed on holidays and anniversary occasions.
Perhaps, it should be used more rationally and based on the actual needs of the
correctional system (e.g., overcrowding) which are not always connected with the
national holidays. Interestingly, in many Western countries amnesty as a way of
reducing prisoners was deemed to be not effective. Russia has been facing severe
overcrowding in its penal facilities for many years, with inmates in pretrial
detention sometimes waiting as long as several years for their cases to come to
trial. In this circumstances, amnesty helps to reduce the number of inmates. In
2000, in response to this crisis, the Russian Parliament approved an amnesty that
resulted in the release of 120,000 pretrial detainees and sentenced offenders. This
reduced the inmate population to 980,000 as of September 2000. As a result of the
continuing rise in the prison population in the United States along with a major
prisoner amnesty in Russia, the U.S. rate of incarceration surpassed that of Russia
in 2000 and the U.S. is now the world leader in imprisonment. The U.S. rate of
690 prisoners per 100,000 population is now greater than the Russian rate, which
declined from 730 per 100,000 in 1999 to 675 per 100,000 in 2000. Clemency
also adds flexibility to the sentencing policy in Russia.
At the same time, one should not forget that extensive implementation of
amnesty and clemency mechanisms in order to reduce prison population or for
63


whatever purposes may produce the results opposite to those which are deemed
desirable by the criminal justice system. Excessive amnesty eventually
undermines court's authority to punish criminals and makes the efforts of law
enforcement agencies appear useless in the eyes of ordinary citizens. Therefore,
these means should remain measures of last resort in penal policy.
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7. Changes in the Russian Penal Policy
7.1 Introduction
By 1997, Russia has established a comprehensive system of sanctions that
was designed to be consistent with the democratic values adopted in the new
Russian Constitution of 1993. It was the main goal of the Russian criminal law
reform, that sought movement away from repressive Soviet model of sentencing
towards a more lenient and flexible penal policy. Previous chapters revealed a
framework of the current system of sanctions and sentencing principles as they
are established in the Criminal Code of 1996. However, a question of whether the
goals of reform were successfully achieved remains. In order to provide credible
answers, an evaluation of the changes in both the Russian sanctioning system and
sentencing patterns is necessary.
7.2 Transformation of the Sentencing Ideal
Criminal substantive and procedural legislation is one of the main forms
of penal policy manifestation. The mechanism of policy goals transformation into
criminal code's provisions was well described by Sviridov (1997). The analysis of
this process allowed him to reach a conclusion that although many factors
65


influence the legislation process the outcome always reflects currently dominating
values and approaches of the policy makers that they take to resolve vital social
problems. Lobbing groups held similar or opposite positions regarding a specific
penal policy issue, whichever appears to be dominant at a specific time will still
represent a distinct type of legal thinking about crime and punishment whether it
will be a "tough on crime" approach or its more liberal alternative. Thus, changes
that occur in penal policy may normally be documented in normative regulation
provided in the Criminal Code's respective sections.
The Code's section that describes the goals of punishment has undergone
the most striking changes. Goals of punishment, as they are established in the
Code, provide legal justification for punishing criminals. They are intended to be
most visible and provide an insight into current views on punishment shared in
the society and among policy makers. Therefore, it should be considered the most
indicative in terms of reflecting the current direction of the Russian penal policy.
As it has been described before, the striking difference between the current
Criminal Code's approach to the notions of punishment and its goals and the
approach taken by its predecessor is the abandonment of retributive justification.
The Code plainly rejected retributivism as a penal policy objective. Instead, the
emphasis was shifted towards rehabilitation. The latter is mentioned among the
goals of punishment in Art. 43 of the Code. Besides, it is also pursued indirectly,
66


through the goal of crime prevention. The goal of crime prevention is achieved
successfully, if the released offender does not commit any more crimes. It is
possible if such an offender gave up his antisocial activities, i.e., if he is
rehabilitated. In other words, true crime prevention should involve resociolization
or rehabilitation of an offender. Thus, even in the goal of crime prevention the
Code emphases rehabilitation as a guiding principle.
In contrast, the Code of the RSFSR, that was in effect until 1997, included direct
reference to retribution in its section on the goals of punishment. The importance
of this reference can not be underestimated. As a guiding principle it framed the
sanctioning system. The system was structured accordingly: starting with the most
severe punishment recognized in the Code. The principle should also be taken
into account by a judge when he assigned a specific punishment. Thus, it
produced significant impact both on the system of sanctions and on sentencing
phase of the trial.
An exclusion of retribution from a list of the goals of punishment was in
some respects a symbolic act. The goal was to show that the Russian criminal law
moved away from repressive models of sentencing that were in practice during
the Soviet period. Another aim was to direct the judiciary towards leniency in
sentencing. This claim is supported by several comprehensive and
interdetermined provisions of the sanction system and the sentencing section of
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the Code. The structure of the sanction system is constructed so that the less
severe types precede the more severe. A more severe sentence may only be
considered if the less severe ones fails to achieve the goals of punishment.
Therefore, both the sanction system itself and sentencing principle included in
Article 60 of the Code orient the judge towards leniency in sentencing. The
punishment is assigned in strict accordance with the character and degree of social
danger of the crime. The personality of the offender is required to be taken into
account. All the above mentioned provisions are meant to be served as the
practical means that are used in order to assign a just punishment which should
facilitate the rehabilitation of the offender.
Rehabilitative ideals are in the basis of current system of sanctions as well.
As the material covered in Chapter 1 shows, the system went through significant
transformation. Many new types of sanctions were established. Thirteen sanctions
listed in the respective section of the Code aim to provide the flexibility necessary
in order to rehabilitate a particular offender. Systematic analysis of the list of
sanctions shows that if applied they would produce significant improvement of
penal policy in terms of making it more offender-oriented and thus more
conductive to rehabilitation. However, the total number of types of punishment
that are available to the judge is much less than that found in the Code. Among
the thirteen types of punishments only seven are actually implemented. Besides,
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some of them are so rarely in effect that their impact within the sanction system is
insignificant. There are reasons to conclude that almost half of the existing types
of punishment do not work. This situation is caused by the dilatory clue in the
Code. The dilatory clue postpones putting into operation three of the thirteen
types of punishment. Arrest, compulsory works, and limitation of freedom will be
available as sentencing options after specific conditions are met. The delay is
stipulated for the lack of organizational and financial resources required to
successfully apply the sanctions. The Federal budget lacks the financial resources
for the construction of arrest houses and centers of offenders' improvement.
Compulsory work does not require new institutional facilities to be constructed.
However, this type of punishment involves the creation of new jobs. The existing
job market does not accept the offenders convicted to exercise compulsory works.
The work is free to the the offenders, but they are not profitable for their
employers. All their wages must be transferred to the federal budget. Therefore,
employers have no interest in providing working spaces to the offenders
sentenced to compulsory work. Initially, all three types of punishments were
meant to start functioning no later than 2001. However, due to the lack of
resources and required conditions their implementation was postponed once again
until 2004, 2005, and 2006. (Zubkova, 2002:185). This is a most optimistic
scenario, but it should be noted that others exist. It has been estimated, for
69


example, that the delay might be even longer: the sanctions will not take effect
until 2009 (Dubinin, 2002).
There are other circumstances that aggravate the situation. The other types
of punishment that do not involve isolation of the offender from the society are
applied quite infrequently. For instance, fines are rarely implemented. It has been
established that most of the offenders are poor and do not posses any valuable
property that could be used to pay the fine. The majority are unemployed, and
thus can not pay their bills, not to mention the fines that are imposed upon them
as a criminal punishment. As a result, the frequency with which fines were
applied in Russia started decreasing since 1998. In 1998, the number of offenders
who were sentenced to fines was 8.2%, in 1999 it reduced to 6.7%, and in 2000 -
to 5.2% (Zybkova, 2002). Obviously, the effectiveness of this type of punishment
decreases accordingly. Discussing this particular punishment option, it should be
noted that the fine has a peculiar position in Russian system of sanctions. It
should be considered when comparing Russian sentencing trends with those of
other countries. Historically, Russian law that punishes socially disapproved
behavior splits into two branches: administrative law and criminal law.
Administrative law provides sanctions for relatively minor offenses as opposed to
criminal law that deals with socially dangerous conducts labeled as crimes. It
distinguishes Russian response to crime (or what is defined as crime) from those
70


of many European countries, in which criminal justice systems do not recognize
the distinction between administrative and criminal conduct. For instance, if we
consider Finish sentencing statistics it would appear that most of the offenses
punishable under Finish criminal law are punished by the fine. That does not
necessarily imply that Finish sentencing policy is more humane and lenient than
Russian. The fine remains the principle punishment in Finland mostly because of
the absence of the above mentioned distinction. In Russia, although the fine is
present in the Criminal Code its application faces financial and organizational
obstacles. Correctional tasks (ispravitelnue rabotu) also contain a great
correctional potential. Currently, it is not used to its maximum because of
financial and organizational constrains. According to the law, this type of
punishment can be assigned to those offenders who already have a job. Due to
high levels of unemployment among the offenders this type of punishment faces
huge challenges upon its implementation. Hence, the numbers of offenders
convicted to correctional works decreases considerably. According to the data
presented by GUIN (Glavnoe Upravlenie Ispravlenia Nakazanii) of Ministry of
Justice of the Russian Federation, the respective numbers were 8.9% in 1995,
8.2% in 1996, 6.9% in 1997, 5% in 1998, 4.7% in 1999, and only 4.2 % in 2000
(Dubinin, 2002).
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Supplementary punishments do not play an independent role in
sentencing. Although they do provide additional flexibility to the system, their
share in distribution of punishments is insignificant. For example, the number of
offenders convicted to deprivation of the right to occupy specified offices or to
engage in a specific activity deprivation of special, military, or honorary title,
rank, and government awards was limited to 0.3% in 1999, and 0.2% in 2000
(Dubinin, 2002). Limitation in military service and keeping in a disciplinary
military unit can be applied to a very limited circle of military offenders. The
value of confiscation of property as an alternative punishment is often
underestimated. Currently, it only can be used as an additional punishment
assigned primarily for the property crimes. Thus, its weight in the total number of
punishments applied is insignificant. In 2000 it was 0.3%, in 2001 0.2 %, and in
2002 0.2%. In the prevailing circumstances, confiscation of property should be
used to the utmost, with changes it in character, content and grounds for
application. First, this remedy should be transferred from the category of
additional, to that of principal and additional. Confiscation of part or all property
should be used not only in cases when it is directly stipulated under the law, but
as an alternative to imprisonment as well. Execution of confiscation does not
involve additional financial resources. Its effects on the offenders are believed to
be less damaging than effects of imprisonment: the offenders are not isolated from
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the society, their social relations and family links are preserved, it is easier to
return them to the normal life and achieve long lasting positive effects of the
punishment. Thus, this punishment may significantly improve the effectiveness of
the system by reducing the costs associated with execution of punishments and
simultaneously increasing its rehabilitative potential.
Consequently, deprivation of freedom remains the most broadly applied
punishment in Russia. Suffice it to say, it is overrepresented in the sanctions of
the Special Part. The weight of deprivation of freedom in the total net of
punishments applied by the Russian courts does not remain constant. Throughout
the years it has fluctuated in the range from 25% to 70%. However, its leading
role in the Russian sentencing system remains constant. For example, in 2000 the
total number of prisoners reached 1,201,600; 353,600 of those (29.4%) were
sentenced to deprivation of freedom (Zubkova, 2002). Deprivation of freedom as
a most frequently applied punishment was followed by fines which were applied
in 5.2% of cases (Savelev, 2001). This is a serious issue that requires immediate
attention because of the consequences it has on the penal policy and its effect on
the system of corrections in Russia. Coupled with the raise in crime rates
sentencing where deprivation of freedom remains a predominantly applied
punishment inevitably results in high incarceration rates. Additional concern is
the extensive use of pretrial detention. Russia has been facing severe
73


overcrowding in its penal facilities for many years, with inmates in pretrial
detention sometimes waiting as long as several years for their cases to come to
trial. As a result of the continuing rise in the prison population in the Russian
Federation, in 2000 Russia became the world leader in imprisonment. In response
to this crisis, the Russian Parliament approved an amnesty that resulted in the
release of 120,000 pretrial detainees and sentenced offenders. This reduced the
inmate population to 980,000 as of September 2000. As in the Russian
Federation, the U.S. rate of incarceration has been increasing continuously for
nearly thirty years. From approximately 330,000 inmates in prison and jail in
1972, the inmate population has grown to 1,890,000 by the end of 1999 (Starkov,
2001). The total number of prisoners of penitentiary institutions in Russia
decreased by 117,000 during 2000. The number of prisoners reduced at the same
rate in 1987-88. Now there are 655 prisoners per 100 thousand people in Russia
(over 700 in the USA). If the Russian Federation Ministry of Justice program on
the reduction of prisoners is realized, by 2004 the number of prisoners in Russia
will reduce by 400 (per 100 thousand people). Amnesty, declared by the State
Duma in May 26, 2000, is considered to be the main reason in the reduction of the
number of prisoners. As many as 222,000 prisoners were released from
penitentiary institutions by December 1 (Dubinin, 2002). According to
preliminary estimation 120 thousand prisoners were expected to undergo amnesty
74


(Kryglova, 2001). However, reduction of prison population is claimed to be not
only a matter of amnesty. During previous years, despite annual amnesties, the
number of prisoners remained the same or even increased. In 2000, GUIN
administration did everything possible to have the number of people entering
prisons not only the same but decrease and the number of people leaving prison
increase. According to the opinion of Pretrial Detention Department of GUIN
(Sechin, 2000), investigators and prosecutors who are in charge of sanctioning
Pretrial detention very seldom apply this measure of restraint. Mainly, the
reduction of arrests is the result of the governments concern about living
conditions at jails (sledstevnnui izolyator). It was in 1999, when Vladimir Putin,
Prime Minister at that time, had two conference calls with governors, heads of
regional prosecutors offices, directorate of interior affairs, Justice and other
departments. Putin called on regional leaders to do everything in their power to
unload jails. There was immediate result in a number of regions: in November
1999 the measure of restraint, not related to imprisonment, was changed to 4
thousand people detained at Investigation Isolators (Sechin, 2000).
The reduction of prisoners could be much more substantial if not for the
judges still delaying the consideration of criminal cases. At present time over 60%
of detainees in jails are people on trial. Besides, GUIN has opened special local
jails in 166 colonies, mainly for the accused awaiting the enforcement of the
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verdict. It is not as difficult to serve there as at ordinary jails: 7-10 thousand
people occupied the area intended for 16 thousand people. GUIN administration
at the Ministry of Justice does everything possible to place of extra prisoners,
because of increased costs. Often, they use release on probation. For example, in
the Murmansk region over 70% of prisoners are released on probation. During 9
months of last year a Presidential Committee in charge of Remission issue
released or shortened the custodial sentences of 12,5 thousand prisoners (Dubinin,
2002).
Amnesty as well as early and conditional release should remain a means of
last resort. Therefore, the decline of prison population that occurred in 2000 in
Russia can not be considered a success of Russian penal policy. On the contrary it
reflects the weakness of the system. Despite well designed reform of the current
criminal legislation, amnesty still produces a disproportionally large number of
offenders sentenced to deprivation of freedom and continues to relay on
extrajudicial measures (e.g., amnesties and clemency) in dealing with such
problems as overcrowds of Russian prisons. This is an obstacle that still has to be
overcome.
Thus, the most effectively implemented alternative to imprisonment is
conditional sentencing. The available statistics show how the popularity of this
sentencing option increased through the entire period it has been available. From
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29.6% to 36.7% The number of conditional sentences handed down in a year
grew from 29.6% in 1995 to 36.7% in 1999 The growth was especially rapid
between 1997 and 1999 (Zubkova, 2002).
Another interesting trend that could be observed since the present
Criminal Code took effect was the changes in sentencing patterns in regard to
imprisonment and its terms. Between 1997 and 1999, the average length of of
sentences of imprisonment fell from 5.7 to 4.3 years (Zubkova, 2002). The total
number of sentences of imprisonment however raised consistently. These changes
can be explained primarily by new definitions in sentencing for a category of
property crimes.
Long custodial sentences imposed for traditional property crimes kept the
prison population at its peak level during the entire observed period. High
minimum penalties and rigid offense definitions for aggravated forms of theft
affected the number of Russian prisoners in the 1990s. However, in late 2002 new
definitions and new punishment ranges were introduced. As a result there was a
change in sentencing practice. In 2001, 34.6 % of offenders sentenced for larceny
received a custodial sentence. A year later, this had decreased to 33.2 %
(Shmelev, 2003). Courts are encouraged to use short sentences of imprisonment
in the Supreme Court general instructions. The full effects of these amendments
are hard to estimate though. Sentencing rules for multiple offenders also changed.
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The early experience indicates that on the whole the new sentencing options have
been adopted in the way that the legislators wanted.
In this context, punishment in the form of sending convicts to settlement-
colonies institutions of a semi-open type, may become an alternative to real
imprisonment. Currently, only 16.4 % of offenders serve their sentences in these
institutions (Starkov, 2001). The judge is unable to place an offender into a
settlement-colony if an offender is guilty of any grave offense punishable by more
than two years. Therefore, lists of the kinds and categories of people, who may be
sentenced to such a penalty, should be extended. This could be done by restoring
the settlement-colonies which formerly existed for offenders who had committed
intentional offenses of little and medium gravity and sentenced to terms of
punishment under 5 years. Besides, it is proposed to send to such settlement-
colonies those who commit offenses of neglect, irrespective of length of term. So
far, however, the rates of imprisonment show a tendency to decline.
Despite the fact that custodial sentencing continues to prevail in Russia,
the bare presence of a variety of alternatives to imprisonment in the Code shows
that a shift towards rehabilitation and leniency has occurred. It is an indicator of
changes in penological ideals and recognition of rehabilitation and humanism as
priority goals in penal policy implementation. It possesses a huge potential that, if
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properly applied, could significantly reduce the prison population and produce
positive impact on the sentencing climate in the Russian Federation.
Russian Criminal law, however, has not lost its repressive potential. To
state the opposite would be to suggest that radical changes in penal policy
occurred, which is simply not true. Penal policy as noticed by Nazarenko (2000)
is notorious for its conservatism. Therefore, any changes that do occur usually
occur gradually. Basic legal and semantic analysis of the Code's statements shows
that current criminal legislation continues to contain the repressive provisions of
its predecessor. Although the system of sanctions in the present Code was
rearranged according to newly adopted principles of sanctioning, it has not lost its
repressive spirit which is an essential characteristic of any criminal law. The
repressiveness of the system is inherently linked to the coercive character of any
sanction contained in the Special part of the Code and becomes quite obvious
from the general definition of punishment contained in the General part.
A matter of particular interest in this respect is the sanctioning grid.
Generally, the terms of imprisonment increased in comparison with the terms
provided for in the Criminal Code of RSFSR. For example, the present Code
makes it possible to sentence an offender to up to 25 years of imprisonment. This
is the maximum term provided for a single offense now. The maximum term
recognized by the Criminal Code of RSFSR was 15 years. Obviously, in this
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dimension the sanction system is more severe now than it was before. Another
important issue to consider is the length of the terms for an aggregate of crimes
and crimes that were committed by recidivists. These imply a punishment of 30 to
40 years of imprisonment. Such terms have never been in effect during the Soviet
times.
Life imprisonment remains a debatable issue. On the one hand, it is
generally perceived to be consistent with general tendency toward leniency and
humanism in the Russian sanction system. It substitutes for that death penalty that
is commonly considered inhumane and excessively severe in a modem world. It is
true that the Code includes life imprisonment as an alternative to death penalty
and thus limits the number of crimes punishable by both to five which is less than
1% of the total number of sanctions contained in the Criminal Code. Given the
situation with pending death penalty, life imprisonment happens to be the only
possible punishment to select from for aggravating homicide, and some other
crimes. It may seem even more lenient if we consider the fact that life
imprisonment does not always mean that a convicted person will remain in prison
forever. Under exceptional circumstances even prisoners serving life sentence
may be considered for parole and other forms of early release.
On the other hand, the question of whether life in prison is a more humane
sentence than death remains highly arguable. Sergienko (2001) claims that results
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of public opinion poll conducted in 1999 suggests that a significant number of
respondents think that life imprisonment may be an even more severe sentence
than a death penalty. Conditions of Russian prisons are notoriously bad and
continue to degrade due to the lack of financial resources. The problems of the
accommodation and maintenance of the different categories of convicts keep
aggravating. The situation with convicts sentenced to life imprisonment in
comparison with others is less vital, but still quite serious. According to the recent
data (GUIN, 2002), the general-type corrective colonies are overfilled to 110 % of
capacity, colonies for the maintenance of tuberculosis (TB) convicts to 145 % of
capacity, the medico-prophylactic institutions to 126 %, corrective colonies for
life prisoners to 105 % of capacity. Sixty percent of the buildings are in
emergency or otherwise unsatisfactory condition, requiring capital repairs. Still
awaiting solutions are such matters as the maintenance of convicts whose death
sentences have been commuted to life imprisonment, as well as of persons held in
pretrial detention centers pending the commutation of a death sentence to life
imprisonment by way of pardoning (total of 850 inmates). The situation regarding
medical care for TB patients in penal institutions, is assessed as extremely tense.
Every year from 35 to 40 thousand convicts contract tuberculosis for the first time
and some 30 thousand TB patients enter pretrial detention centers. The medical
institutions of the penal system are overcrowded and lack normal conditions for
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maintaining the patients, requirements for feeding, medicines, and medical
equipment are met by only 20-25 %. Because of the shortage of places in
stationary TB institutions about 15 thousand TB patients are maintained in
isolated sectors of corrective institutions, and some 2,000 among healthy convicts
(GUIN, 2002). At present, medical service for detainees and prisoners does not
comply with international standards of medical service in penal institutions and
the right of every citizen to medical service and health protection stated in the
Constitution of the Russian Federation. About 95 % of medical institutions are
situated in unsuitable buildings; due to lack of space it is impossible to open
necessary laboratories and departments (GUIN, 2002). Medical personnel are
unable to make correct diagnosis and treat without modem equipment. For these
reasons, planned operations were postponed in many hospitals. It is more difficult
to render qualified medical help due to the insufficient number of medical staff
with 75 % more doctors needed (GUIN, 2002). Providing adequate medical
treatment faces another problem insufficient funding for basic nutrition needs of
the inmates. The Federal Budget is supposed to provide 20 rabies and 10 kopeks
per day for nutrition of each prisoner in a correctional institution but in reality
sum is no more then 15-17 rubles (GUIN, 2002). Considering all the above it
should not be surprising that many respondents found life imprisonment to be a
harsher punishment than death.
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The death penalty is always perceived as a main indicator of penal policy
changes. It is true not only regarding its abolition but also the fluctuations in its
implementation. Experts estimate that during the years of Soviet rule, between 30
and 55 million people were executed, died in prison camps, or in exile, and while
being transported between camps (Milukov, 2001). Between 1962 and 1990 in the
USSR, 24,500 people received the death penalty and more than 21,000 were
executed (about 730 executions per year). We can compare this with the period of
80 years between 1826 and 1906, when in Russia 612 people were sentenced to
death (7 people per year) and not more than 170 people executed (or 2 people per
year) (Milukov, 2001). Judging from these numbers, Soviet penal policy was an
example of extreme severity and repression.
By the end of 1990s, there were over 30 crimes punishable by death in
accordance with Russian legislation. During the period when the 1960 Criminal
Code of the Russian Federation was in force, the greatest number of death
sentences was given in early the 1960s. Thus, in 1960,1,880 people were
sentenced to death and 2,159 in 1961. Then the number of those sentenced to
death reduced from 577 in 1965 to 379 in 1970. During perestroika (reformation)
their number continued to decline from 407 in 1986 to 100 in 1989. Later, due to
a sharp growth in crime the number of people given the death penalty increased to
160 people (Milukov, 2001).
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At the end of 1995, corrections housed 710 inmates sentenced to death
whose destiny has not yet been decided. From 1989 to 1991, in Russia 470 people
were given the death sentence and 228 were executed. Between 1993 and 1995,
the number of executions reduced to 10 per year. This became possible in part due
to legislative changes stipulating the possibility of commuting exchange the death
penalty to life imprisonment. In 1995, the President pardoned only 5 people out of
91 prisoners sentenced to death who petitioned for clemency (Starkov, 1999).
Boris Yeltsin, signed Protocol No. 6 to the European Convention on Human
Rights, committing Russia to eliminating the death penalty to secure membership
of the Council, one of Europe's main human rights bodies. In 1996, he called for a
moratorium on judicial executions, traditionally carried out in Russia by a bullet
to the head. But the Russian parliament has yet to ratify the protocol or act to
strike the penalty from the criminal code.
Capital punishment remains a sensitive issue in Russia. An overwhelming
number of ordinary Russians favor capital punishment, their anger inflamed by
killings blamed on rebels from breakaway Chechnya and organized crime.
According to online news agency "Pravda.ru":
A million signatures were delivered yesterday to Russia's State
Duma (lower house of parliament) from the Nizhegorodskaya
Region (an administrative district located some 500 km east of
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Moscow) in favor of retaining the capital punishment in Russia.
According to the Ekho Moskvy radio, the signatures had been
collected by an organization called the 'Union for Fighting Crime.'
The action is reported to have been conducted at the initiative of
Dmitri Savelyev, a member of the 'Union of Right Forces' faction
at the Duma (Pravda.ru, 2001).
Criminal justice officials in Russia historically are not exposed to much of
public pressure and rarely consider public opinion when it comes to determining
the direction of penal policy. President Putin was quoted once as saying that he
was aware of public opinion on the death penalty but believed that state-
sponsored cruelty did nothing to fight crime and only engendered new violence.
The President is convinced that Russia should uphold its five-year-old
moratorium on the death penalty, despite widespread calls to reinstate executions.
"The state should not assume the right which only the Almighty has to take a
human life," he said. "That is why I can say firmly I am against Russia
reinstating the death penalty." Amnesty International (2001) praised the position
of President Putin and encouraged him to pursue this issue to the full abolition of
death penalty in Russia. "Now is a prime time for the Russian President to follow
his own words with action. By fully abolishing the death penalty, Russia can
provide invaluable leadership as an important international player to countries
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which are still executing prisoners on death row, such as China, the United States,
Saudi Arabia and others," Amnesty International (2001) said.
At present, the death penalty still remains in the Code. However, the
Constitutional Court has ruled that as long as most Russian regions do not have
jury trials, no court could hand down a death sentence. But the jury reform is on
the way: by the end of this year court reform will have made jury trials the norm
for serious cases in the majority of federative subjects. Unless the Duma scraps
the death penalty first, this will pave the way for courts to start imposing death
sentences again, making it harder to maintain the moratorium. Thus, this issue
remains to be resolved before the last jury is established in Chechnya region in
2009.
During the enforcement of sentences of imprisonment authorities can use
the parole system to control the length of time actually spent in prison. Use of this
system has also proven to be a very powerful tool in controlling prisoner rates.
Any changes in the basic structure of the parole system will have visible effects
on prison numbers. In Russia all prisoners except those few serving their sentence
in medical centers because of their mental condition are eligible for parole. It
should be noticed that at present, as result of recent reform the minimum time to
be served before the prisoner is eligible for parole is reduced as compared to the
one defined in criminal legislation that was previously in effect.
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In general it can be concluded that the severity of sentences has decreased.
This is a result of changes in the penal ideology behind the sentencing provisions.
The aim of the penal system is general prevention and rehabilitation. The
assumption is that this effect is reached not through fear (deterrence) but through
a moral-educative effects of punishment (rehabilitation). According to this
assumption, the disapproval expressed in punishment is assumed to influence the
values and moral views of individuals. As a result of this process, the norms of
criminal law and the values they reflect are internalized. People are believed to
refrain from illegal behavior not because it is followed by unpleasant punishment
but because the behavior itself is regarded as morally blameworthy. This is the
ideal the current penal system is seeking to achieve. Just as this ideology
emphasizes the fairness and justness of sanctions, in sentencing it means
proportionality, predictability, and equality. These ideas are now clearly
expressed in the basic norm on sentencing.
The leading principle of sentencing as it is recognized by present Code is
proportionality. Although the foundation of this principle is often sought in
retributive notions, the Code specifically emphasized its other side. The new
perspective involves considering its value through the notions of liberty and the
prohibition of misuse and arbitrariness. The principle of proportionality attributes
practical meaning to the concept of the rule of law that became an inherent part of
87


new Russian Constitution. The rule of law, legal safeguards, and the guarantees of
citizens against the excessive use of force altogether form an important
framework that promotes preventing overly harsh and unjustified punishments.
Consistent with this principle, the Code also shifted an emphasis from the lower
limits of punishment that is available to the judge to the upper limits. Judicial
options are much less restrictive when considering the possibilities of imposing
sentences that are less severe than the offender's act would have deserved. This
order of priorities has been confirmed in several provisions of the Code which has
not been recognized before. The first change to be evaluated here is the general
right of the court to go below the prescribed minimum whenever exceptional
reasons call for such a deviation. Also, the grading of offenses reflects the same
idea: the list of criteria that make an offense an aggravated one are always
exhaustive, while the list of mitigating criteria always allow additional
circumstances to be considered as reducing the blameworthiness of the conduct. If
a particular feature of the offense would call for a milder assessment, then the
courts have the discretion to consider the offense one requiring special
consideration, even if none of the criteria were specified in the law exists.
The sentencing phase always involves assessment of seriousness of the
crime and the degree blameworthiness of the offender. The Code provides a
framework, which is specified in detail in general instructions issued by the
88


Supreme Court. The starting points in assessing the social dangerousness of the
conduct are harm, risk, and culpability. According to the recent instructions, the
consequences and their seriousness are determined by the extent to which the
crime has in fact either harmed or endangered the interest being protected.
According to this criterion, all the offenses are graded in the General part of the
Code into four categories. This is the first aspect to be considered by a sentencing
judge. Culpability focuses on the mental state of the offender at the time of the
offense. Criminal law recognized four sets of mental state ranging from intent to
negligence.
Some provisions did not change significantly. The role of prior
convictions remains important in sentencing. The principle that first time
offenders deserved more lenient treatment is widely shared among the judges. The
survey of judges conducted by Sergienko (1997) shows that a first time offender
convicted of a crime similar to the one committed by a recidivist would receive a
more lenient sentence, usually a conditional imprisonment. The survey shows not
only that the absence of prior record matters, but also that offender's prior
convictions are inevitably perceived as an aggravating factor. The same study
suggests that an offender with a prior record would get a harsher sentence for the
similar crime. The reasons for identifying an offender's prior record as an
aggravating factor, however, are far from clear. Much depends on the concept of
89


culpability adopted, general policy considerations, and the overall aims in
sentencing. Use of one's prior record as an aggravating factor may be justified by
pointing out that those who repeatedly break the law are likely to do so also in the
future. Therefore, the repeatedness elevates the dangerousness of the offense. It
was also argued that those who still continued committing crimes after having
been punished showed a clearer lack of respect for the provisions of the law. That
was also perceived as a sign that rehabilitative efforts of the system failed. This
rationale is upheld in the current criminal legislation and the decisions of the
courts.
Guiding the sentencing judge is a highly controversial and delicate matter
in any jurisdiction. This situation is also appreciated by Russian legislature, which
constructed a sentencing model that allows for significant discretion of the courts
and provides means to held the judges responsible for their sentencing decisions.
This flexible model thus ensures that disparities in sentencing are a rare
occurence. Critics who pointed towards disparities in sentencing could earlier be
dismissed with references to judicial independence and to the legality of the
decision (that the punishment is still within the prescribed scale). Although judges
are not legally obliged to take account of decisions of other judges and courts, in
practice they do consider decisions reached by the Supreme Court and its
interpretations of the legal and factual issues. Retaining significant discretion of
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the judges, the model at the same time increases the predictability of the system
and promotes equal treatment in similar cases. The normal punishment approach
above all offers a tool for enhancing uniformity in sentencing. It is not, like most
sentencing guidelines in the United States, a system used systematically to
oversee the level of punishment and make the changes in this level that are
required by an evolving criminal policy. In a civil-law tradition any initiatives in
the matter should come from the legislature or be based on a source that has been
accepted as an authoritative and valid source of sentencing rules. 'Rules' means
generalized instructions concerning behavior. This is of particular relevance when
we contemplate the activities of courts. Normally a court will decide an outcome
of an individual dispute. But when such an individual decision is given the status
of a precedent, it thereby becomes a rule. This status is usually explicit in the
Anglo-American legal world. But the precedential effect will often be
unavoidable, so that even in countries where the law denies it, it still operates.
This was and is the case in Russia. The main difference with the Anglo-American
precedent is that the continental, Russian, and especially Soviet precedent was
weaker; it is easier for courts dealing with similar cases in the future to evade the
issue. Higher courts in Russia have the special power to issue general instructions
concerning the application of the law. There is no point in denying that these
instructions add something to the existing law and are therefore themselves to be
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regarded as law. From this point of view, the Supreme Court is often considered a
valid source of sentencing rules. With its power to generalize judicial practice,
issue biding instructions and interpretations of law, and its authority to reverse
lower court decisions, the Supreme Court is capable of directing judicial practice
in the way it sees better achieves the main aims of penal policy. However, the
Supreme Court in Russia has been rather reluctant to give concrete guidance on
the level of sanctions. Nonetheless, it has pronounced its views on matters
concerning the choice between different sentencing alternatives in different
situations. The main document issued by the Supreme Court that provides
comprehensive insight into the problem of sentencing is its resolution of January
10,1999. The resolution contains detailed interpretations of the Code's sentencing
provisions such as elaboration on mitigating and aggravating circumstances,
general principles of sentencing, grounds for reduction of sentences. As a matter
of fact, this resolution also supports the claim that a shift towards leniency and
particular concerns about just and individualized punishment occurred. It directly
orients the courts to consider the entire aggregate of circumstances of the crime in
order to accomplish a just decision that will provide a basis for successful
offenders reintegration into society. Individualization of punishment is one of the
basic principles of the Russian penal policy under the new legislation. In regards
to punishment there is first of all the duty of the courts to apply punishment
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Full Text

PAGE 1

; f j -i I I t : SANCTIONS AND SENTENCING IN RUSSIA by Vladimir Zaitchenko J.D., Samara State University, 2000 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Criminal Justice 2003

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, I I 2003 by Vladimir Zaitchenko All rights reserved I

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This thesis for the Master of Criminal Justice degree by Vladimir Zaitchenko has been approved by Mark Pogrebin Phil Reichel Date

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Vladimir Zaitchenko (M.C.J., Criminal Justice) Sanctions and Sentencing in Russia Thesis directed by Assistant Professor Mary Dodge ABSTRACT So significant have been the changes in sentencing and sanction system in Russia since the early 1990s that it is not easy to pick out principle developments. In 1996, a new version of the Criminal Code was adopted. Currently in effect, the Code reflects the movement from a repressive soviet criminal justice model to a modern one emphasizing legal safeguards against excessive coerciveness. Sanction system changed significantly as well. Compared to its predecessor, the punishment section of the Criminal Code contains numerous legal novels. The most striking are the changes that occurred in the entire structure of sanctions. The law is vastly more complicated and descriptive now. Legal principles of sanctioning emphasize new priorities, reflecting the shift from old theoretical schemes that served as conceptual grounds for sentencing. The research presents a framework of the core elements of the Russian sanction system as they are currently established, trends in modern sentencing policy in Russia, and analysis ofthe potential ways for the system's further development. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. Signed Mary Dodge IV

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ACKNOWLEDGMENT Research for this thesis was supported in part by the Edmund S. Muskie/Freedom Support Act Graduate Fellowship Program, a program ofthe Bureau of Educational and Cultural Affairs (ECA), U.S. Department of State under authority ofthe FulbrightHays ACt of 1961 as amended, and adminstered by the American Councils for International Education: ACTRJACCELS (American Councils). The opinions expressed herein are the author's own and do not necessarily express the views of either ECA or American Councils. I would also like to thank Dr. Mary Dodge for academic inspiration, encouragement, and support. My appreciation also extends to Dr. Mark Pogrebin and Dr. Phil Reichel for their academic guidence and support throughout my graduate experience.

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CONTENTS Chapter 1. Introduction .......... .................................................... .................. ............ ............ 1 2. Purpose of Study ..... ......... ................... .............. .......... ........................................ 6 3. Statement of Thesis Significance ......................................................................... 8 4. Methodology .............. : ..... ..... ...... .......... ........................................................... 10 5. Sanction System of the Russian Federation ................. ; .................................... .l2 5.1 Introduction ...... .................... .......... ...... ..... ......... .................... ....................... 12 5.2 Punishment. ........... ...... ............................................ ...... ...... ............. ............... 13 5.3 Goals ofPunishment .......... ... ............................... ........... ...................... ............. l6 5.3.1 Restoration of Social Justness ............................................................................ 17 5.3.2 Rehabilitation and Crime Prevention ................................................................. IS 5.4 Types ofSanctions ................ .......... .................... ............................... ............ 19 5.4.1 Death Penalty ................................... ..................... ........................................... 22 Vl

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5.4.2 Deprivation offreedom .................................................................................... 24 5.4.3 Arrest. ............................................................................................................ ... 29 5.5 Intermediate Punishments in the Russian Federation .......................... ........... 30 5.5.1 Fine ............. .................................................................................................... 30 5.5.2 Correctional Tasks ................................................ ... . . .............. ..................... 31 5.5.3 Obligatory Tasks ........... .... ............................................................................. 32 5.5.4 Limitation ofFreedom ........................................................... ............. ........... 33 5.6 Supplementary Punishments ............................................................................ 33 5.6.1 Deprivation of Titles, Ranks, and Awards ....................................................... 33 5.6.2 Confiscation .... ............. .... .... .... ...... ... .......................................................... 34 5.6.3 Deprivation of the Rigth to Occupy Posts or Engage in Activities ................. 35 5.7 Special Types ofPunishment.. .... ................................................... ................. 36 6. Sentencing in the Russian Federation .............................................................. 37 6.1 Introduction ...................................................................................................... 37 6.2 General Principles of Sentencing .... ............................................................... 38 6.3 Mitigating and Aggravating Circumstances ......................... ........................ .46 vii

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6.4 Conditional Sentencing (Probation) ......................................... ....................... 53 6.5 Parole, Amnesty, and Clemency (Pardon) ......................................... : ............. .55 6.6 Conclusions . ...................................................................................................... 60 7. Changes in the Russian Penal Policy ............................................................... ... 65 7.1 Introduction ...................................... ........ . ........ .................. ............................ 65 7.2 Transformation of the Sentencing Idea1... .......................................................... 65 7.3 Conclusions ...................................................................... ................................. 95 References ....................... .......................................................................................... 1 01 viii

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1. Introduction During the last decade the beginning of a drastic evolution of the system of justice has taken place in Russia: this has affected its laws and structures and the civil and criminal proceedings. At least a short outline of the basic aspects is necessary to try to understand the evolution within the context of the profound changes that concerned the political system at the beginning of the last decade. One of the most remarkable points in the contemporary Russian history is associated with the resignation of Mikhail Gorbachev as President of the Soviet Union that took place on 25 December 1991. That was a symbolic act that demonstrated the collapse of the old Soviet social-economic system and resulted in the formal dissolution of the Soviet Union. The last few years of the Soviet rule brought tremendous changes in every segment of the Soviet society. The changes included the increase of the free flow of information and the relaxation of censorship, attempts to modernize the economy, the institution oflocal elections, proposed cuts in the size of military and its budget, and other attempts at political reform. This political transition soon began to spin out of control. Failures in both political and economic reforms became more and more obvious. An attempt of 1

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the conservative communist wing of the Soviet Government to dismiss Gorbachev and to get political control over the country resulted in a total loss of power by the Communist Party and forested the final dissolution of the country. The collapse of the Soviet Union left Russia as the largest, most powerful, and most influential of the fifteen republics. Over the next five years a process of dramatic change continued. Attempts were made to construct democratic institutions, to establish a formal banking system, and to develop the outlines of a capitalist economy. The complete reconstruction of Russian social fabric accelerated many problems inherited from the Soviet Union and brought to life the new ones. As a result of state wide privatization, large numbers of people became unemployed, the majority of population suddenly found themselves below poverty level. The fall of the Iron Curtain followed by the flow of goods and information from the West confirmed the gap existing between the western high life standards and the local ones. The collective frustration caused by the social-economic instability increased significantly. Attempts to modernize the economy and the political system in Russia accelerated many problems inherited from the Soviet Union, and triggered the birth of the new ones. A dramatic raise of crime was a predictable side effect of the socioeconomic transition observed in the Russian Federation since the early 2

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1990s. As a matter of serious public concern, it challenged the criminal justice system, calling for urgent criminal policy measures. Sanctioning is the essence of criminal policy of any country. As Robert McKay, former dean ofthe New York University Law School, correctly observes: "The kingpin of the entire criminal justice system is the sanctioning process" (1976: 223-226). Indeed, a country's sanction system remains a most vivid indicator of the changes in its criminal policy. It represents the state's response to the problem ofhow to deal with criminal lawbreaking. By setting up a range of sanctions and attributing punishment to a certain crime, the state not only informs its citizens about the limits of law abiding behavior but simultaneously provides its law enforcement agencies with a legal framework to deal with law violations. In 1996, a new version of the Criminal Code was adopted. Currently in effect, it provides a solid legal basis for law enforcement efforts in combating crime in modem Russia. As a prime and single source of Russian criminal law, the Code also reflects the movement from a repressive soviet criminal justice model to a modem one emphasizing legal safeguards against excessive coerciveness. Sanction system changed significantly as well. Compared to its predecessor, the Punishment section of the Criminal Code contains numerous legal novels. The most striking are the changes occurred in the entire structure of sanctions. The law became more descriptive, which in part was a response to law 3

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enforcement claims for more specificity and detail of criminal law rules. Legal principles of sanctioning emphasize new priorities A completely new goal of punishment is incorporated into the Code restoration of social justice. Changes in the socioeconomic climate, new approaches in politics, and revised criminal legislation consequently influence current penal policy. Russia's rapid transition from an authoritarian form of government to an open democratic society, with all its legal and policy attributes, challenges traditional criminal law concepts of punishment inherited from the soviet law school. Theoretical schemes which served as conceptual grounds for sentencing now contradict modem socioeconomic reality. Modem system of punishment in Russia attracted Russian legal scholars' attention in the late 1990s. Few researchers, however, approached the subject from a criminological perspective, as well as little effort having been made to analyze current trends in Russian sentencing policy compared to those in foreign countries. This area of research remains undeveloped despite substantial theoretical interest of western criminologists in similar trends observed in sentencing in western countries. Facing severe economic problems, Russia is now at such a point in its history when testing even completely new state policies (which may appear to be effective) is not only required but desired. As deputy Neshatayeva (2001) pointed 4

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it out at the international conference "Russia and European Council: Together For 5 Years" on International Standards of the European Convention on Protecting the Human Rights and Basic Freedoms and the Russian Legislation about their implementation in Russian legal practice, "it is a matter of the ever-changing life practices and readaptation ... if you didn't change, you would eventually have to pay dearly, and that from your national budget, your country's exchequera very costly pleasure indeed of being conservative and averse to change." It is, however, as important to analyze new approaches and their outcomes, as it is to implement them in sanctioning policy. 5

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2. Purpose of Study The purpose of this study is to examine sanctions and sentencing in the Russian Federation. This thesis is intended to frame the core elements of the Russian sanction system as they are currently established, to identify trends in modem sentencing policy in Russia, and to analyze the potential ways of system's further development. The goals of the research include gaining an overall understanding of the sanction system in the Russian Federation as well as comprehensive insight into the workings of the sentencing system as it is currently applied in Russia. It explores the philosophy upon which the system is founded, how that philosophy has evolved and diverged throughout the past decade, and how it is affecting the sanctioning system and sentencing in Russia today. The premise is that the foundation of the sanction system and sentencing in the Russian Federation was strongly affected by the country's socioeconomic transition, which triggered structural reforms in the field of justice administration in general, and sanctions and sentencing in particular. The scale of its impact on sanctions and sentencing in the Russian Federation remains to be determined. 6

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First, significant characteristics of modem Russian sanction system will be examined. The work defines structural elements of sanction system and links between them. In order to reveal the spirit of Russian sanctioning, the research includes an explanation of the principles of its organization and functioning, describes modem types of sanctions, and shows how the elements are all linked together to form a comprehensive sanction system for the Russian Federation. Various theoretical approaches to sanctioning will be reviewed to provide a fundamental theoretical background that influenced development of modem system of sanctioning in Russia. Second, an analysis of Russian sentencing practices will follow. The research examines current sentencing statistics and data which are relevant to the process of sentencing itself. Procedural legal provisions regarding judge's decision-making will be analyzed. Finally, the research identifies current trends in Russian sentencing policy and changes in sanction system. Based on the outcomes of the research, a conclusion ofwhether the sanction system of the Russian Federation and its sentencing policy has changed will be made. Assuming, a positive conclusion will be reached, the impact of the changes on the system will be estimated. The research should also suggest prospective areas within the examined subject which require further analysis. 7

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3. Statement of Thesis Significance Currently, sanctioning and sentencing arouse substantial academic interest throughout the world. A great deal has been written on the subject in the United States (e.g., Alschuler, 1978,1993; Cahalan, 1986; Cullen & Gilbert, 1982; Forer, 1994; Frankel, 1973; Frase, 1995,1997; Kern, 1995; Morrise & Tonry, 1990; Morris, 1974; Reitz & Reitz, 1995; Tonry, 1993, 1996; Uelman, 1992; Zimring & Hawkins, 1991, 1995). English-language literature on sentencing laws and practices in Western countries is rapidly growing (e.g. Albrecht, 2001; Ashworth, 2001; Freiberg, 2001; Lappi-Seppala, 2001; Tak, 2001; Weigend, 2001). The literature provides "a rich source of data on the variety of approaches to common issues of sanctioning and sentencing policy faced by almost all modem nations" (Frase, 2001, p.259). Some areas, however, remain unexamined. Russian sentencing and the sanctioning system is one of many prospective spheres in that field that welcome further and more attentive examination. Approaching the subject, a prospective Western researcher faces an area that is almost completely undeveloped. Russian language literature is limited (Starkov & Milukov, 2001; Stanovski, 1999; 8

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Zubkova, 2002), and English-language literature is almost nonexistent. As Tonry and Frase observe: "there has been little genuinely cross-national or comparative scholarship on sentencing and sanctions" in general. (2001 p. v). In regards to the Russian Federation, the lack of scholarly work is true to its extreme. Available data are very limited. Few attempts to collect and examine current Russian data on sanctioning and sentencing policy have been made even in domestic literature, and that is despite an obvious interest in the emerging criminal policy of the Russian Federation. Therefore, the outcomes of this research seek to fill out the existing lack of information on Russian sanction system and sentencing. The thesis will also address prospective areas for future research. The conclusions of the research enhance comparative studies of sanctioning and sentencing, close the comparative law theory gap, and invite further analysis of Russian sanctioning model and its sentencing structure. As a first study of current sanction system of the Russian Federation, the research's aim is to contribute a better understanding of modern sanctioning and sentencing. 9

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4. Methodology This research is an exploratory-descriptive study of the Russian sanction system and sentencing. As any exploratory-descriptive study, this research seeks to capture core aspects of the current state of the Russian system of sanctions and sentencing as a part of social reality for which it is difficult to develop precise measures. In order to do it, this type of studies borrows devices from the humanities (e.g., metaphor, analogy, theme, motif) and is oriente9 towards constructing meaning (Neuman and Weigand, 2000). The approach recognizes the importance of emphasizing the social context for understanding the social world. The exploratory-descriptive approach was chosen to conduct this study because it is considered to be particularly appropriate for addressing subjects that have never been examined before (Neuman and Weigand, 2000). As the literature review indicates little has been published in the West about the Russian sanctions and sentencing as they were established in the 1990s. Therefore, prior to any specific studies of the subject it is necessary to establish a general understanding of what has been done and what results have been achieved. Such knowledge can provide an essential framework for further research. A descriptive approach places the subject into a broader setting, thus providing a more comprehensive and systematic perspective on sanctions and sentencing in Russia. Relatedly, 10

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limited "comparison across countries and time" (Evans, 1985) is utilized in order to illustrate the changes and to facilitate to the understanding of the current state of sanctions and sentencing in Russia. Approaching the subject of the research the following several steps typical for the descriptive-exploratory research are taken. The first step involves conceptualizing the object of inquiry. To start analyzing the system and patterns in sentencing we have to become familiar with a setting and conceptualize what is being studied I start with preliminary concepts of punishment and apply them to a specific setting of Russian sanction system and sentencing. The provisional concepts contain implicit assumptions or organizing categories that I use to search through evidence. Next, I locate and gather evidence through extensive bibliographic work, searching for sources in libraries and online. Since the focus of the research is on Russian sanctions and sentencing, I extensively use literature in Russian. Another valuable source of legal data is the main Russian computer legal base "Consultant-Plus" that provides online access to all sources oflaw in the Russian Federation. The last step is to combine arguments to illustrate how new Russian guidelines form a coherent framework for future sentencing. 11

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5. Sanction System of the Russian Federation 5.1 Introduction The contemporary Russian sanctioning system evolved as the product of post-Soviet criminal law doctrine. It is deeply grounded in Soviet criminal law tradition and simultaneously reflects the changes in socioeconomic life that have accompanied the transition to a market economy. As a legal notion, the Russian system of sanctions, unlike many other definitions in substentive criminal law, is viably clear and non-controversial. Defined by many scholars (Trainin, 1929; Piontkovskii, 1970; Galiakbarov, 1986; Naymov, 1996; Nazarenko, 2000; Starkov & Milukov, 2001) as an aggregate of the measures of state coercion, the system of sanctions is reflected in the Criminal Code as a list of penalties arranged in a specific order. It is still arguable though whether the notion implies that the system's elements within it form certain types of relations between each other or if it is simply a list of penalties available to a judge. The analysis of the contemporary sources of substantive criminal law suggests that approaching sanctioning system as merely a list of penalties is fundamentally incorrect. In the past, such views led to the formation of a distorted picture of the sanctioning 12

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system, excluding some types of criminal punishment solely for the reason that they were not listed as such in the code. Starkov and Milukov (200 1) point out that death penalty, conditional sentence, and release under condition of mandatory labor were excluded from the sanction system of RSFSR on the same formal ground (they were not mentioned in Article 21 of the Criminal Code of the Russian Soviet Federative Socialist Republic (RSFSR), which contained a list of applicable sanctions). Therefore, a more substantive approach to the sanctioning system's definition is preferable. The substantive approach avoids the defects of a formal definition, and also provides a theoretical framework to evaluate various types of sanctions and to examine their interrelation and interchangeability within the system. The issue of interchangeability of various sanctions is regarded as particularly vital. Applying interchangeable sanctions may successfully serve the purpose of balancing controversial goals of punishment. 5.2 Punishment The central element of the Russian sanction system is the concept of punishment. Article 43 of the Code defines it as the measure of State coercion assigned by judgment of a court. Punishment shall be applied to a person deemed to be guilty of the commission of a crime and shall consist of the deprivation or limitation of rights and freedoms of this person provided for by the present Code (1996). It is the first time in the history of Russian criminal fegislation that the 13

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concept of punishment is clearly defmed in the Code. An attempt to include a legal defmition of punishment was made in 1919. Article 7 of the so-called Guiding Principles of Criminal Legislation of the RSFSR -a prototype of the first Soviet Criminal Code established that punishment is the measure of coercion by means of which the government enforces the present order of social relations. However, subsequent sources of criminal legislation did not include any definitions. For decades punishment remained a strictly doctrinal concept which was reflected in the legislation only by means of defining its goals. The reluctance of the legislature to provide a sound legal definition of punishment in the Code, on the other hand, reenforced and to some extent predetermined the ways it was theoretically approached in criminal law doctrine. A great bulk of literature contains teleological perspective of punishment, defining it mainly through its goals as either punitive or rehabilitative. For example, Dementyev (1993) suggested that punishment is a retribution intentionally imposed on the convicted persons to make them suffer the consequences of their misconduct. Obviously, such an approach replaces the substance of punishment with one of its goals. The new definition included in the Code (1996) did not end the discussion but rather revealed new arguable aspects of the concept. As Article 43 clearly states, punishment is the measure of State coercion, which consists of the deprivation or limitation of rights and freedoms of the convicted person. 14

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"Deprivation or limitation of rights and freedoms" is an entirely new notion that still requires theoretical comprehension and further examination in legal literature. Four substantive features of punishment are distinguished in contemporary literature. First, its coercive character implies that a convicted person is subjected to the sanction regardless of his or her will. Punishment, therefore, is regarded as a natural consequence of a conducted offense and a legitimate limitation of convicted person's freedoms. There is a distinct causal relationship between crime and punishment. Crime is the essential ground for a punishment to be invoked. As principle of legality dictates, both a crime and a punishment should be statutory prescribed. Only punishments listed in the Code may be implemented. Second, punishment is an official state reaction to the committed crime. Its public nature thus distinguishes it from other forms of retribution, for example, civil liability suits. It is considered to be the State's responsibility to ensure public safety and order and to take legal action against perpetrators. Formally, publicity of a punishment is revealed in pronouncement of sentence in the name of the Russian Federation. Third, criminal sanction implies personal responsibility of a convicted person for the committed conduct. All the criminal sanctions listed in the Code may only be applied to a person. Corporate criminal liability does not exist in the 15

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Russian criminal law doctrine. To be subjected to a criminal punishment a person should be found guilty of the commission of a crime following the specified legal procedures. Punishment consists of the deprivation or limitation of rights and freedoms of a convicted person. This is the last, fourth, essential feature of punishment. It reflects the punitive substance of punishment. The level of punitiveness is determined by the character and degree of social dangerousness of a committed crime as well as dangerousness of an offender (Zubkova, 2002). It is important to maintain a balance between those categories to ensure that an offender is treated fairly and receives a just sentence. Nikiforov stresses that "punishment in its punitive meaning implies compulsion to suffering ... which is in its essence proportionate to the crime" (1978, p.128). 5.3 Goals of Punishment Understanding current system of sanctions requires a clear idea of its purpose. Traditionally, this idea has been approached through the notion of aims or goals of punishment. The Code mentions them in Article 43: Punishment shall be applied for the purpose of restoring social justness, and also for the purpose of reforming the convicted person and preventing the commission of new crimes. 16

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In general, compared to its predecessor, the new Code underlines rehabilitative objectives of punishment. Among the goals persuade by its application are rehabilitation of the offender, restoration of social justness and crime prevention. The Code now does not mention retribution among the punishment objectives. The wording reflects a tendency of the legislator to get rid of the repressive rhetoric of the previous code Legal theory still disputes the value of retribution as a goal of punishment. Retribution, as a goal is denied by the majority of Russian scholars (see: Piontkovskii, 1970; Strychkov, 1978; Zybkova, 2001). Retribution is largely perceived as an essential element of punishment rather than its goal. Reluctance to accept that retribution does exist both as an element and a goal of punishment could in part be explained by the fear that otherwise retribution could be the end in itself(Remenson, 1969). 5.3.1 Restoration of Social Justness Restoration of social justness is a new goal that was included in the Code. It is based on the assumption that a state of social justice damaged by the offender's conduct may be restored by implementing a reasonable, humane, and fair punishment. Its inclusion in Article 43 to some extent reflects the current global trend to restorative justice observed by Frase (2001) and Albrecht (1995). It is not the retribution that is sought by the state, but rather the "justice in and for local communities and groups" (Albrecht, 1995, p. 307). As a broad legal 17

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construction, however, restoration of social justice incorporates a virtually abandoned idea of retribution. Generally, retribution implies that the person who commits a crime must "pay" for that crime. This notion incorporates a basic human feeling revenge. Crimes, as wrongful human conducts, infringe upon social justice, damage it, and spread a feeling of injustice in society if they remain unpunished. Rarely acknowledged in present day jurisprudence, this aim of punishment (based on the jus talionis frequently referred to as: "An eye for an eye, a tooth for a tooth") finds its ways into the modern criminal legislation. Filimonov believes that retribution as a goal "has subsequently transformed into the goal of restoration of social justness" (1996, p. 96). It would be legitimate to conclude, that although retribution is definitely no longer the dominant objective of criminal law, it still exists and manifests itself in a more sophisticated legal form. 5.3.2 Rehabilitation and Crime Prevention Rehabilitation of the offender and crime prevention represent two different perspectives on the main criminal law objective deterrence. As Farrell notes, "there are at least two things we are typically trying to do when we punish someone for disobeying the law: we are trying to keep them from disobeying the law again, and we are trying to keep others from following their example." (1985, p. 214). Rehabilitation of the offender within this context is closely linked to the 18

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specific deterrence goal. It is considered to be successfully achieved if no new cases of criminal activity are observed in the life course of the former convict. General prevention is gained by efficient punishment implementation which by itself should produce a restraining effect on the persons potentially inclined to law violations. Interestingly, the Code mentions only these three goals of punishment. It is still difficult to determine whether they should be interpreted strictly according to their literally meaning or if a broader interpretation is acceptable. For instance, a goal of incapacitation, once popular, now is not mentioned either in the Code or in recent publications on sanctions. It is arguable that incapacitation of an offender is inherently contained in the broad notion of crime prevention reflected in the third goal of punishment listed in Article 43 of the Code. 5.4 Types of Sanctions Analyzing the substance of concrete punishments listed in the Code might be helpful in capturing the true meaning of the abstract notion of punishment. Current criminal legislation provides for 13 types of sanctions each containing a distinct portion of state coercion. The frame of the Russian modem sanction system is defined in the list of penal sanctions established in Article 44 of the Code. It lists all the penal sanctions currently applicable in the Russian Federation. The system is structured 19

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in a certain order which is designed to guide a judge through the process of sentencing. Types of punishment are listed in the article starting with the more lenient ones orienting a judge to consider them first. It reflects the principle of "saving of repression" which implies that it is important to limit repression in pursuing the aims of punishment. For example, if the goals of punishment could be achieved by applying a more lenient sanction the harsher one should not be imposed. This principle was upheld by the Plenum of the Supreme Court of the Russian Federation in resolution No.8 of October 25, 1996. According to Article 44, the following punishments may be applied to persons who commit crimes: fine deprivation of the right to occupy specified offices or to engage in a specify activity deprivation of special, military, or honorary title, rank, and government awards compulsory work tasks correctional tasks limitation in military service confiscation of property limitation of liberty 20

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arrest keeping in a disciplinary military unit deprivation of freedom for a determinate period deprivation of freedom for life death penalty The Code introduces five new types of sanctions: compulsory work tasks, limitation in military service, limitation of liberty, arrest, deprivation of freedom for life. Others were slightly changed. The Russian sanction system is structured according to the fundamental criminal law principle of distinguishment between basic and supplementary types of punishment. Basic punishments are all-sufficient and may be prescribed if they are mentioned as a sanction for a particular offense in the Specific part of the Code. Part 1 of Article 45 defines compulsory work tasks, correctional tasks, limitation in military service, arrest, keeping in a disciplinary military unit, deprivation of freedom for a determinate period, deprivation of freedom for life, and death penalty as basic punishments. Supplementary punishments are never linked to a specific offense. The court is not obliged to assign them, but rather may choose at its own discretion to apply one in addition to a basic punishment. Deprivation of special, military, or 21

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honorary title, rank, and government awards and confiscation of property may be applied only as supplementary punishments The intermediate position is reserved for the punishments that could serve both as basic and supplementary depending whether they are mentioned as such in the Specific part of the Code. These are fme and deprivation of the right to occupy ; specified offices or to engage in a specified activity. I 5.4.1 Death Penalty According to the Constitution the death penalty will remain in the Russian sanction system until its abolition. Article 59 of the Code maintains that "the death penalty as an exceptional measure of punishment may be established only for especially grave crimes infringing on life. The death penalty shall not be assigned to women, and also persons who have committed crimes at an age less than eighteen years, and to men who have attained at the moment of rendering of judgment by the court sixty-five years of age. The death penalty may by way of pardon be replaced by deprivation of freedom for life or by deprivation of freedom for a term of twenty-five years." The death penalty abolition continues to be a vital problem in Russia and a subject oflegal and political debates. Currently, Russia as a member of the European Union is obliged to exclude death penalty from its penal code. However, a compromised decision was temporarily reached. Although the penalty 22

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remains in the sanction system it has not been implemented since 1998. First, a moratorium on execution was imposed in 1998. A presidential board of pardon was used to enforce the presidential decree on moratorium. In practice, the courts continued to impose death penalty but no one has been executed. The next step on the way to the complete abolition of death penalty was made in 1999. The Constitutional Court of the Russian Federation ruled the death penalty unconstitutional since a defendant's constitutional right to a jury trial could not be provided in all case. So far, despite constitutional and procedural provisions jury trials are established only in nine regions of the Russian Federation. However, it is still far from the final solution of the problem. In 2004, jury trials should be fully functional across the country and the death penalty issue will arise once a gam. Briefly, this problem is viewed from two directly opposite perspectives. The proponents of the abolition support the Constitutional Court decision claiming the death penalty unconstitutional but on different grounds. Its presence in the sanction system violates universal right to life established in the Constitution of the Russian Federation and international treaties ratified by the Russian Federation which according to Article 15 of the Constitution have priority over the national legislation. Other arguments presented by the proponents of the abolition include death penalty inefficiency and insignificant 23

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impact on crime control, cruelty, its contradictory nature in terms of achieving the aims of punishment. Shestakov (1998) argues that the sole existence of death penalty in the Russian penal system makes the entire system more severe. The proponents of the death penalty in support of their position refer to the public opinion on the problem and to high crime rates which according to their beliefs require the death penalty as the most effective deterrence. Some authors (Starkov & Milukov, 2001) refer to the American experience in this field. They argue that the death penalty is still widely implemented in the United States and conclude that it is deemed to be effective and should not be abolished. 5.4.2 Deprivation of Freedom Deprivation of freedom in the Russian Federation may be imposed as life imprisonment and imprisonment for a determinate period of time. Life imprisonment is a new type of punishment regarded as an alternative to death penalty. Therefore, the spectrum of potential cases when life imprisonment can be implemented is limited to the offenses punished by a death penalty. Currently, there are six such conducts. Life imprisonment can be imposed by a judge or as a result of clemency. Being an alternative to death penalty, life imprisonment can not serve as an independent penalty. As a death penalty alternative it also has some limitations such as a limited circle of persons who could be subjected to it. Article 57 part 2 maintains that deprivation of freedom for life shall not be 24

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assigned to women and also to persons who have committed a crime at the age of seventeen years old or younger, and men who have attained sixty-five years of age at the moment of the rendering of judgment by the court. Some scholars argue that it would be desirable to alter limitation on the implementation of life imprisonment. Starkov and Milukov (200 1) believe that increasingly imposed life imprisonment could provide a successful measure in combating crime. Their position is based on the assumption that current criminal code altering death penalty as a sanction for some grave offenses does not provide an adequate alternative, which could only be life imprisonment (2001, p. 32). They cite data supporting the argument that this type of sanction is popular in Europe. American practice regarding this issues also is widely presented. However, they emphasize that the American approach can not be taken for granted. For example, deprivation of freedom for life when imposed on juvenile offenders is deemed to be excessive (Starkov & Milukov, 2001). Deprivation of life for a determined period, as well as life imprisonment, consists of the isolation of the convicted person from society by means of sending him or her to a colony-settlement or premise in a correctional colony of general strict or special regime or to a prison. Length of imprisonment varies and is linked specifically to an offense, however, it may not be less than six months or more than 20 years. This is a general rule. Exceptions can be made if it is assigned in 25

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the event of the replacement of correctional tasks or limitation of freedom. In this case deprivation of freedom may be for less than six months. Another exception from this rule is allowed in the event of the partial or full composition of periods of deprivation of freedom when assigning punishments for the aggregate of crimes and judgments In that case the maximum period of deprivation of freedom may not be more than twenty-five years, and for the aggregate of judgments, more than thirty years. Persons sentenced to deprivation of freedom are assigned to a range of correctional institutions. Several criteria are used to determine which type of correctional institution is chosen: gravity of an offense, degree of guilt, gender and prior convictions of a person. According to Article 58 of the Code, persons sentenced for crimes committed through negligence to deprivation of freedom for a term not exceeding five years shall be assigned to serving their terms in colony settlements. Persons sentenced for the first time to deprivation of freedom for the commission of intentional crimes of minor or average gravity and grave crimes, as well as persons sentenced for crimes committed through negligence to a term longer than five years, serve their sentences in correctional colonies of general regime. Three categories of convicts serve their sentences in correctional colonies of strict regime: persons who committed especially grave crimes for the first time, recidivists, especially dangerous women-recidivists. Life imprisonment is served 26

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in colonies of special regime Especially dangerous men recidivists are also assigned to correctional colonies of special regime. These four types of correctional facilities vary in the degree of security and personal freedom limitations. Criminal Execution Code specifies the conditions and regimes in each type of correctional institutions. Transfers from one type to another is allowed but should be authorized by the court in accordance with criminal-executory legislation. Deprivation of freedom for a determinate period of time is considered to be the most widely and frequently implemented type of sanction in the Russian Federation. In 1970s, this punishment was imposed in 60.5% of cases. By 1999, the number of cases had dropped to 34% of total punishments imposed (Dzigar, 2001) However, it should be noted that in absolute figures the number of offenders punished with deprivation of freedom consistently increased in 1990s. Imposition of deprivation of freedom is crime specific. Thus, considering specific offenses, the portion of the cases when an offender was punished by imprisonment is even greater. Consider the following data: 41.1% ofthe offenders convicted for stealing or extortion of weapon, ammunition, explosive substances, or explosive devices were sentenced to imprisonment (the rest 58.9% were sentenced to other types of punishment that did not involve deprivation of freedom). For violent crimes the numbers are even higher: 56.1% of the offenders 27

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convicted for hooliganism under aggravated circumstances, 84.7% of the offenders who committed theft under aggravated circumstances, and 96.2 % of persons who were found guilty of murder were sentenced to imprisonment (Zybkova, 2001). There are several reasons why deprivation of freedom is excessively used in Russia. Traditionally, it represents one of the major penal sanctions. In the 1970s the percentage was even higher. The Code altered some punishments such as exile and banishment, which were no longer thought to be effective. New types of sanctions introduced by the 1997 Criminal Code, require significant financial, management, and human resources. Given the situation, imprisonment appeared to be one of the few sanctions that does not require substantial reconstruction of the entire structure of sanctions implementation in the Russian Federation. Prison infrastructure existed since pre-Soviet times and with slight modernization continues to serve the needs of criminal justice system. Justifying the increasing imprisonment rate, Starkov and Milukov (200 1) make another observation. They explain that current imprisonment rate does not adequately represent the actual situation with imprisonment in Russia. Offenders serve their sentences in a variety of facilities that differ from each other depending on regime, level of security, and degree of freedom limitations. Current statistics are based on the assumption that all the facilities where deprivation of 28

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freedom is served should be included. However, Starkov (2001) argues that not all the facilities imply sufficient level of security and degree of freedom limitations. Colonies represent that type of low security level facilities. An offender serving his or her time in such a facility is not required to stay there all the time. He or she is permitted to study, have extra money, and live with his or her family. But most importantly, they do not provide a key function of deprivation of freedom isolation of the offender from the community. Taking all these arguments into consideration it seems justifiable to exclude colonies from prison statistics. Moreover, colonies could serve as a basis for developing an alternative system of intermediate sanctions, since all the infrastructure is already in place and adequately functioning. 5.4.3 Arrest Arrest is a new type of punishment introduced in 1997. It consists of confinement of the convicted person under conditions of strict isolation from society for a very short period of time from one up to six months. Its execution is postponed until the conditions required for its implementation are created. The available literature on this type of sanctions suggests that its effectiveness still has to be tested. Short terms of incarceration are considered to be ineffective when it comes to the purpose of rehabilitation. Even though the main idea is to subject offenders to a very short but intense type of punishment which ideally should 29

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produce a strong effect on their behavior and deter them from committing crimes in the future. Strict isolation has to ensure that a convicted person will not assimilate criminal values which prison settings are notorious for and thus a conviction will not give a start to criminal career development. 5.5 Intermediate Punishments in the Russian Federation As it has been pointed out already, Russia ranks first in the international community for the extent to which imprisonment is prevailing in sentencing. The introduction of new types of sanctions was an attempt to change the situation for the better. These alternatives were intended to reduce the imprisonment rate by means of substituting incarceration with sanctions that do not require isolation of a convict from the rest of the community. So far, the problem of overcrowding in Russian correctional institutions has been solved by means of either conditional sentencing or amnesty for certain categories of offenders. 5.5.1 Fine Under the present criminal law, courts have broad discretion in imposing fines. A fine is defined as a monetary sanction assigned within the limits provided for by the Code in an amount corresponding to the determined quantity of minimum amounts of payment for labor established by legislation ofthe Russian Federation at the moment of the assignment of punishment or in the amount of earnings or other revenue of the convicted person for a determined period. The 30

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amount of fme is determined by two groups of factors: one related to the seriousness of crime and the other to the financial situation of the offender. It may be imposed as an amount that is equivalent to the minimum monthly wage (MMW) defmed in the federal legislation or as an equivalent of the offender's income. The general part establishes the minimum and maximum fines ranging from 25 MMWs to 1000 MMWs or up to a full offender's income for a period of two weeks to one year whichever is higher. Concrete sums, however, are determined by a judge. A fine should be paid no later than 30 days after it is imposed. The Code requires a judge to take the financial situation of the offender into account not only in order to determine an amount to be paid but also when it comes to determining the timeframe within which a fme should be paid. Offender may claim for rescheduling the actual payments if their financial situation does not allow them to pay all the fines in full. In such a case, a judge may provide an offender with up to one year to pay off the fine. If the fine is not paid, it may be converted into other types of punishment, such as compulsory work tasks, correctional tasks, or arrest. These punishments may be imposed for up to their own maximums as they are defined for that particular offense 5.5.2 Correctional Tasks Before the current Criminal Code took effect in 1997, the major intermediate type of punishment consisted of correctional tasks. Correctional 31

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tasks are served by a convict at the place of work. Basically, a person is neither isolated from the society nor removed from routine work. Convicts continue carrying out their job responsibilities and are being paid The earnings of the convicted person are subject to withholding which are made to the revenue of the State. A court has the discretion to defme the exact amount of withholdings with a prescribed set of limits, that is, from 5 up to 20%. In the event of the evasion of serving this punishment the court may replace the unserved part with punishments that include incarceration. Correctional tasks have a great punitive potential and it is generally accepted that this type of punishment should be widely applied in current conditions. So far, it has been applied in less than 5% of cases (Zybkova, 2001). 5.5.3 Obligatory Tasks Obligatory tasks are similar to correctional tasks. This type of punishment is new in the Russian sanction system. Obligatory tasks consist of unpaid socially useful (community) work that the convicted person is conducting during his or her after work hours. The type of a community work is determined by the responsible municipal agencies. The number of hours to be served is determined by the court with the prescribed limits of from 60 up to 240 hours which is served not more than four hours per day. Execution of this sanction is postponed till the facilities required for its implementation are in place. 32

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5.5.4 Limitation of Freedom Limitation of freedom is another new sanction among intermediate punishments. It consists of the confinement of the convicted person in a special institution without isolation from society under conditions of the effectuation of supervision over him. This type of punishment is intended for persons who committed either crimes through negligence or intentional crimes if the offender has no prior records of conviction. The range of terms vary from one year up to three for persons without prior convictions and to from one year up to five for others. As in the case of obligatory tasks, implementation of this type of punishment is postponed. The system of special institutions required to start applying these sanctions is not available yet. Thus, it is still impossible to evaluate the potential of this type of punishment in Russia. 5.6 Supplementary Punishments Deprivation of a special, military, or honorary title, class rank, and State awards, and confiscation of property can only be applied as supplementary types of punishments. 5.6.1 Deprivation of Titles, Ranks, and Awards Deprivation of a special, military, or honorary title, class rank, and State awards may only take place when a person is convicted for committing a grave or 33

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especially grave offense. The second formal ground for applying this punishment is the personality of the guilty person. 5.6.2 Confiscation Confiscation of property is the compulsory seizure without compensation to the ownership of the State of all or part of the property which is the ownership of the convicted person. In this case, the nature of a crime is considered to be a crucial factor. A court should find mercenary motives in the offender's criminal conduct. Gravity of an offense is another factor taken into consideration. Confiscation may be applied only in the case of grave or especially grave crimes. Unlike the deprivation of a special, military, or honorary title, class rank, and State awards confiscation may only be assigned if the Special Part of the Code respectively cites it to be applicable as a sanction for a specific criminal conduct. Not all the property could be subject to confiscation. Exclusions are listed in the attachment of the Criminal-Executory Code of the Russian Federation. The effectiveness of confiscation, as well as fines, in current socioeconomic conditions in the Russian Federation is arguable The majority of convicts hardly have any means to support their families and themselves. Therefore, imposing sanctions of purely financial nature is unrealizable. A failure in executing these types of sanctions is attributed to poverty of the majority of Russian population. 34

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5.6.3 Deprivation of the Right to Occupy Posts or Engage in Activities Deprivation of the right to occupy determined posts or engage in determined activity is a traditional punishment which was adopted from the previous Criminal Code which can be both supplementary and basic. It prohibits the occupation of posts in State service, agencies of local self-government, or to engage in a determined professional or other activity. Cases when this punishment is used only as a basic one are rare. In 2000, only 102 out of 1,201,600 persons were sentenced to this type of punishment. As a supplementary punishment it is applied more frequently 0.2 % of all persons convicted in 2000 (Zybkova, 2001). Usually, the deprivation of right to occupy determined posts or engage in determined activity is linked to the specific offense when either the crime was committed due to the position of an offender or it is considered important to limit access of an offender to a specified activity or both. A judge has the discretion to sentence an offender to the deprivation of right to occupy determined posts or engage in determined activity if he or she deems the retention of the right to occupy the determined posts or to engage in a determined activity to be impossible even in cases when this punishment is not listed as a sanction for a particular offense. 35

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The deprivation of right to occupy determined posts or engage in determined activity is established for a term of one to five years as a basic type of punishment and for a term of from six months up to three years as a supplementary type of punishment. 5. 7 Special Types of Punishment An isolated group of sanction is comprised of punishments designed for offenders performing military service. Limitation in military service is similar to correctional tasks in way that a convict performs his duties in the military and up to 20% of his monetary maintenance is subject to withholdings made to the revenue of the State. Confinement in disciplinary military unit is served by military servicemen for the commission of crimes against military service listed in a special part of the Code and should not exceed two year of confinement. 36

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6. Sentencing in the Russian Federation 6.1 Introduction Understanding the contemporary sentencing process in Russia requires a knowledge of general principles of the assignment of punishment. These core rules for imposing punishment evolved as basic sentencing criteria that a court should observe in order to choose just and fair punishment among the range of available sanctions. In Russia it is established in a form of legal imperative, which cannot be changed other than through another legislative initiative. The rules are incorporated into the Criminal Code, which, as it has been already mentioned above comprises the sole source of Russian criminal legislation. The Code devotes one chapter entirely to the issues of sentencing Chapter 1 0 contains general principles of assignment of punishment and specific rules for assignment of punishments in cases that involve aggravating or mitigating circumstances, recidivism, attempt, and conspiracy. Special rules that regulate assignment .of a conditional sentence, terms of probation, and grounds for relief are also included in the chapter. 37

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6.2. General Principles of Sentencing General principles of assignment of punishment are at the basis of the sentencing phase of a criminal trial. They serve two distinct functions. First, the principles fill the sentencing stage with the penal policy substance. General principles reflect the penological ideas that society currently supports. As the following examination will show, in Russia, as in the majority of the countries, there is no single penological rationale used for the purposes of punishment justification. On the contrary, Russian sentencing conveys a mixture of sentencing models, and features of each of them may be found in the general principles. Second, the principles serve as safeguards limiting the court's potential for prejudice and arbitrariness. Some ofthe principles directly limit judicial discretion and some of them, although designed without such an intent, still may produce a similar impact upon it. Article 60 of Chapter 10 contains three basic principles that aim to ensure that punishment is just, legal, and humane. The principle of legality as one of the main principles oflaw receives a peculiar meaning when applied to sentencing. Article 60.1 of the Code declares that a punishment shall be assigned to an offender "within the limits provided for by the respective Article of the Special Part of the present Code and taking into account the provisions of the General Part of the present Code." Normally, sentencing takes place within the limits set by the 38

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penalty scale for the specific offense. The degree of such a limitation is different in each particular case. First, a judge has to find a respective article ofthe Special Part that contains a defmition of the committed crime. Its sanction may differ depending on the offense. The majority of sanctions are either alternative or semi defined. Alternative sanctions imply that the respective article provides for more than one type of punishment. For instance, unlawful deprivation of liberty shall be punished by either arrest or deprivation of liberty (part 1 of article 127). A judge has a choice between two types of punishments to apply in this case. A semi defined sanction is the amount of a specific type of punishment provided for in a respective article. For instance, in the above mentioned example the sanction of article 127 also specifies the length of arrest and deprivation ofliberty. Therefore, a judge has some discretion regarding the amount of punishment to prescribe. In any case, a judge's discretion is limited to a certain degree by the type of punishment and its length or amount. Both are predetermined and are fixed in the Code by the legislator. Taken in comparison with other countries' approaches towards sentencing, Russia consistently employs a statutorily determined sentencing model. The American belief that indeterminate sentencing might be the most efficient way to accomplish goals of punishment has never been shared in Russia, although, in many ways indeterminate sentencing may be considered a very efficient system. It contains a substantial degree of an official's discretion 39

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and thus is flexible enough to accommodate changes in correctional policy. However, it is exactly that large degree of discretion that makes the indeterminate sentencing model subject to various and quite valid criticism. Uncontrolled discretion may be exercised randomly, arbitrary, or invidiously and thus produce extreme disparities in sentencing (Tonry & Hatelstad, 1997). This is only one reason why indeterminate sentencing has never been considered officially as a sentencing rationale in Russia. Giving a sentencing judge such an unconditional authority would be considered a violation of the general principle oflegality. According to that principle, decisions should be made in compliance with the law and shall not be based on judge's personal beliefs. However, the legislator recognized the danger of another extreme sentencing practice also typical in American system. Mandatory sentencing has its history in Russia. During the early years of the Soviet state, criminal legislation of the time provided for mandatory sanctions. The judge in certain cases had no discretion when it came to assigning a specific sentence for a committed offense. Such an approach has its negative side effects. The major one is the complete elimination of individualization of punishment. It is believed that a punishment should fit the crime. Crimes are committed in various situations and in different sets of circumstances. Personal characteristics of the offender also have a certain impact on the degree of social dangerousness of the committed conduct. Therefore, to 40

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ensure that a punishment is just it should relate to a crime and reflect the guilt of an offender. Mandatory sentencing fails to consider any of these factors and, thus, fails to accomplish just adjudication. The principle of legality ensures another peculiar characteristic of the current sentencing model in Russia. Compared to the models predominant in the United States, Russian sentencing structure is more rigid and uniform. Unlike American criminal law, criminal law in Russia entirely remains in federal jurisdiction. The principle of legality requires that all court decisions regarding assignment of punishment should fulfill the requirements that are established both in the Criminal Code of the Russian Federation and in the Code of Criminal Procedure. Federal codes requirements are applied to all courts regardless of their location. Strict implementation of the principle oflegality provides for uniformity in sentencing practices Another factor to consider is the continuing efforts of the Supreme Court ofthe Russian Federation to ensure the uniformity of the lower courts' sentencing decisions. The uniformity is accomplished due to the Supreme Court's authority to review sentences that are assigned by the lower courts on the grounds of their legality. The next general principle that governs judges through the process of assignment ofpunishment is justness. Article 60.1 declares that "a just punishment shall be assigned to a person deemed to be guilty in the commission 41

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of a crime." The criminal Code of RSFSR did not specifically emphasize this principle although it was recognized in the soviet criminal law doctrine. It is precisely that doctrinal concept which now can be found in Article 60. A goal of the assignment of a just punishment is accomplished by observing the following rules. First, the character and degree of social danger of the crime should be evaluated. Notions of character and degree of the social danger of the crime constitute the basis of criminal law doctrine. Traditionally, legal scholars refer to the character of social danger when the task is to distinguish one socially dangerous conduct from another. Thus, the character of social danger varies depending on the type of social relations that are endangered by the criminal conduct. This legal category helps to compare the dangerousness of different crimes. For example, a crime of homicide is more socially dangerous than a crime of theft, because the subject of homicide is the life of a person, which is under greater state protection than property, which is the subject of theft. Consistency of the criminal legislation therefore requires the legislator to ensure that crimes which by their character are more socially dangerous should be punished more severely than crimes which are less socially dangerous. Sentencing judges consider the character of social danger when assigning the punishment for committing two different offenses. Undoubtedly, the punishment for homicide 42

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and theft should be more severe, than the punishment assigned for two aggravated thefts. The degree of social danger comes into play when two similar types of crimes are compared. Both endangered the same type of social relations and thus are indistinguishable by the character of their social danger. An example could be two homicides, that were committed with different set of mens rea. Assume for example, that one was committed intentionally, and the other was committed through negligence. Obviously, the degree of social danger differs significantly between the two. Intentional homicides is believed to be punished more severely because an offender had a specific aim to kill the victim, while in the other case there was no such aim. Therefore, the degree of social danger usually refers to the intensity of the conduct and could be best estimated by means of such notions as guilt and blameworthiness of an offender The personality of a guilty person shall be taken into account as well. Soviet criminal legislation plainly recognized this principle in Article 37 of the Criminal Code of the RSFSR. Russian sentencing continues to consider rehabilitation as one of the primary goals of punishment. In part 3 of Article 60 of the Code, the legislator secured one of the means to accomplish rehabilitation. An offender is viewed as a person with deformed social values that could and should be corrected. The criminal justice system then, ideally, should function as a 43

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mechanism that's purpose is to improve the deformed social values of an offender, reform him, and bring back to the society. The influence of the punishment that is assigned for reform of the convicted person also takes into account the conditions ofhis family. Reference to the interests of the offender's family which should be also considered during the assignment of a punishment has never been made before. Obviously, conviction of a family member significantly affects the entire family. Criminal legislation orients the court to .prevent extensive suffering of the offender's family, and to preserve, when possible, family connections. It, thus, provides additional means for rehabilitation of an offender. Just punishment also implies that the circumstances both mitigating punishment and aggravating punishment are considered. A list of these circumstances is contained in Articles 61 and 63 of the Code. In this respect, current criminal legislation does not differ from the legislation that has been previously in effect. The third principle of assignment of punishment ensures that a guilty person receives a humane punishment. Humanism in the current criminal legislation is a unique characteristic in contrast to the previous Code. Article 60.1 declares that "a more severe type of punishment from among those provided for the crime committed shall be assigned only in the event when the less severe type 44

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of punishment can not ensure the achievement of the purposes of the punishment." This principle guides a sentencing judge and requires him to consider less severe types of punishment first. And only when the social danger of the committed crime, or the personality of a guilty person, suggest that less severe punishment can not ensure the achievement of the purposes of the punishment, a more severe sanction shall be chosen. Another manifestation of the examined principle may be found in part 2 of Article 60 of the Code. It states that "the grounds for the assignment of a less severe punishment than is provided by the respective article of the Special Part of the present Code for the crime committed shall be determined by article 64 of the present Code." By this provision, the legislator ensures the possibility to assign a less severe punishment than the one found in a respective article of the Code. In some cases, it may be unjust to punish a guilty person within the limits offered by the sanction of respective article. Under the circumstances listed in Article 64 a sentencing judge may depart from the statutorily determined sanctions and assign a less severe one. Other than carrying a substantial humane potential this provision gives additional meaning to individualization of punishment and accomplishing the rehabilitative goal of reforming the convicted person who is deemed to be conductive to the rehabilitative efforts of the system. 45

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In certain cases the court may pass a sentence that is below the prescribed minimum. The first concerns the general grounds for reduction. This arises if the offender was between 15-16 years of age at the time of the offense, and in some cases of diminished responsibility, aiding attempt, excessive self-defense and necessity. When these grounds apply, the court may pass a sentence that is below the prescribed minimum. The maximum penalty is reduced by onefourth. In addition, the courts have general authority in exceptional circumstances (other than those mentioned above) to impose a sentence that is less than the prescribed minimum (Criminal Code, chapter 3, sec 5 [2]). There are no circumstances under which the court may exceed prescribed maximum. 6.3. Mitigating and Aggravating Circumstances Traditionally, the role of mitigating and aggravating circumstances in criminal law was to tailor the punishment to the crime during the sentencing phase. The new criminal code devoted four articles in chapter 1 0 to circumstances mitigating and aggravating the sentence. The presence of each of them may significantly influence the fmal decision as to the amount of punishment that shall be imposed on the offender. Compared to its predecessor, the Russian Criminal Code provides a more extensive list of circumstances mitigating the punishment. Ten of them are listed in part 1 of Article 61 of the Code. These include: 46

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committing a crime as a consequence of the accidental confluence of circumstances; the minority of the guilty person; pregnancy; the existence of young children with the guilty person; the commission of crime by virtue of the confluence of arduous living circumstances or by reason of compassion; the commission of a crime as a result of physical or mental compulsion or by virtue of material, employment, or other dependence; the commission of a crime when violating conditions of the lawfulness of necessary defense, detention of a person who committed a crime,extreme necessity, substantiated risk, or performance of an order or instruction; unlawfulness or immorality ofbehavior of victim which was the occasion for the crime; acknowledgment of guilt, active facilitation of eliciting of crime, unmasking of other conspirators in crime, and search for property acquired as a result of the crime; rendering of medical and other assistance to victim immediately after the commission of the crime, voluntary compensation of property damage and moral harm caused as a result of the crime, 47

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and other actions directed towards amelioration of the harm caused to the victim. The sentencing judge may consider other circumstances ofthe crime to be mitigating even if they are not listed in part 1 of the article. Therefore, the Code actually provides for an unlimited number of circumstances that if the judge decides may be considered mitigating. The principle of humanism which, as it has been stated before, governs the entire process of assignment of punishment. The circumstances mentioned in part 1 of the article include new ones which have not been previously recognized. For example, the fact that an offender had young children has never been legally considered to be a mitigating factor. However, Russian courts have considered it when assigning a sentence long before it was incorporated into the Code. Slight difference was made regarding the provision that unlawful or immoral behavior of the crime victim might constitute a mitigating factor. Earlier, solely the fact that a victim behaved unlawfully or immorally was not enough to justify a reduction in sentence. An offender was required to prove that such a behavior caused him to loose emotional control over his actions and thus facilitated in the commission of a crime. Current criminal legislation made this requirement obsolete. Circumstances aggravating the punishment should be revealed during the sentencing stage of a trial. Aggravating factors are specified in the Article 63 of 48

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the Code. A judge considers the following list of factors as circumstances aggravating the punishment: repeatedness of crimes, recidivism of crimes; ensuing of grave consequences as result of commission of crime; commission of crime as part of group of persons, group of persons by prior collusion, organized group, or criminal society (or criminal organization); especially active role in commission of crime; involvement of persons in commission of crime who suffer grave mental disturbance or are in a state of intoxication, and also persons who have not attained the age from which criminal responsibility ensures ; commission of crime for reasons of nationality, racial, or religious hatred or enmity, revenge for the lawful actions of other persons, and also for the purpose of concealing another crime or facilitating the commission thereof; commission of a crime with respect to a person or his relatives in connection with the effectuation by this person of his employment activity or the fulfillment of social duty; commission of a crime with respect to women known by the guilty person to be in a state 49

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of pregnancy, and also with respect to a youth, other defenseless or helpless, or person dependent upon the guilty person; commission of a crime with special cruelty, sadism, mockery, and also torment of the victim; commission of a crime with the use of a weapon, ammunition, explosive substances, explosive devices or those imitating such, specially manufactured technical means, poisonous and radioactive substances, medicinal and other chemical-pharmacological prescriptions, and also with the application of physical or mental compulsion; commission of a crime under conditions of an extraordinary situation, natural or other social calamity, and also in the event of mass disorders; commission of a crime by taking advantage of confidence in the guilty person by virtue of his employment position or contract; commission of a crime with the use of the uniform or documents of a representative of power. The above listed factors constitute an exhaustive index of circumstances aggravating the punishment. The judge may not consider any other factors, which are not listed in Article 63 as aggravating. Compared to its predecessor, the Code of 1996 contains a considerably expanded list of aggravating factors. For 50

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example, now a judge is obliged to attach aggravating significance to the role that an offender played during the commission of the crime, as well as to the use of weapons, explosive materials, and other means that may considerably facilitate commission of a crime. Some of the defmitions became more specific. A court is also deprived of its previously recognizable right to disregard some of the aggravating factors if other circumstances of a crime called for it. Some aggravating circumstances are already incorporated into the corpus delicti of a specific offense. In such a case, a court may not consider these circumstances twice, because by including them in the legal definition of a crime, the legislator accordingly adjusted the amount of punishment to be imposed on an offender. Generally, these circumstances correspond to those found in Article 63. All of them are taken out of the context of a specific crime and gathered in the General Part of the Code. Therefore, there is no need to analyze defmitions of each offense that are included in the Special Part in order to make any general conclusions about the aggravating factors. The Code of 1996 introduced new means for further individualization of justice. Under exceptional circumstances the court may assign a milder punishment than provided by the Code for a particular crime. These exceptional circumstances must relate to the purposes and motives for the crime, the role of the guilty person, his or her behavior during or after the commission of the crime, 51

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and other circumstances which significantly reduce the social danger of the crime. The active assistance of a member of a group in the eliciting of this crime may also serve as grounds for significant reduction in the amount of punishment. Given the above mentioned circumstances the court may assign the punishment which is lower than the lowest limit provided for by the respective article of the Special Part of the Code, or the court may assign a milder type of punishment than provided by the article, or the court may choose not to apply a supplementary type of punishment that would otherwise provided as obligatory. Since the institution of jury trials was introduced into the Russian criminal justice system, the criminal legislation had to be significantly remodeled to achieve its incorporation. New rules of criminal procedure provide for the jury's right not only to decide if a person is guilty of the crime, but also to make recommendations to the judge regarding the sentence to be imposed on the convicted person. The jury may decide that offenders are guilty in the commission of a crime but they deserve leniency. Under these circumstances the judge must impose a sentence which may not exceed two-thirds of the maximum term of the most severe type of punishment provided for the crime committed. If the respective article of the Special Part of the Code provides for the death penalty or for deprivation of freedom for life these types of punishments shall not be applied. The jury also may find that a convicted person deserves special leniency. In this 52

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case the judge must assign a punishment which is less repressive than the punishment provided for in the respective article of the Special Part of the Code, following the rule for assignment of milder punishment than would otherwise be provided for a particular crime. Special rules are established for the assignment of punishment for an uncompleted crime. Under the notion of an uncompleted crime, the legislator recognizes both preparation for a crime and attempted crime. In the case of the preparation for a crime, the punishment may not exceed half of the maximum term of the punishment prescribed for a completed crime. Attempted crime is punishable for a term that should be within the limits of three-quarters of the maximum term of the most severe punishment provided for a completed crime. In no case can a death penalty and deprivation of freedom for life can be imposed for the preparation for a crime or attempted crime. 6.4 Conditional Sentencing (Probation) Conditional conviction is recognized in Russian criminal legislation. Commonly known in many countries as probation conditional conviction is assigned if the court decides that the reform of the convicted person is possible without serving punishment. In the event of a conditional conviction, the Code demands that the court takes into account the character and degree of social danger of the crime committed and the personality of the guilty person, as well as 53

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all the mitigating and aggravating circumstances presented in the case. It establishes a probation period during which the conditionally convicted persons must by their behavior prove their reform. The court may also place on the convicted person the performance of determined duties: not to change permanent place of residence, work, or study without informing a specialized agency effectuating the reform of the convicted person; not to visit determined places; to undergo a course of treatment for alcoholism, drug addiction, toxicomania, or venereal disease; or effectuate material support for the family. The list of duties which the court may place on the conditionally convicted person is not limited to the above mentioned ones. During the probation period, the court upon the recommendation of the agency effectuating control over the behavior of the convicted person may vacate fully or partially or supplement the duties previously established for the offender. If before the expiration of the probation period conditionally convicted persons have proven their reform by their behavior, a court may decree to vacate the offenders. If the offenders have evaded the performance of the duties placed on them by the court or have committed a violation of public order for which an administration sanction was imposed, the court may prolong the probation period, but for not more than one year. In the event of systematic or malicious failure to perform by offenders during the probation period the duties placed on them by the court, the court may decree that 54

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conditional conviction be vacated and the punishment assigned by the judgment of the court be executed. If the offenders commit another crime through negligence or intentional crime of minor gravity during the period of probation it is up to the court to decide whether they may continue on probation or the original punishment should be executed. However, if an intentional crime was committed during the period of probation the original punishment should be executed. 6.5 Parole, Amnesty, and Clemency (Pardon) Although offenders may be found guilty of a crime, sometimes it is better to relieve them from criminal responsibility and/or punishment. There might be various rationales supporting this claim. First, principles of humanism deter us from punishing a person if either offenders after committing a crime showed that their behavior has improved, or if the situation has changed so dramatically that it might be inappropriate or even cruel to punish a person for a conduct which took place in the past. Second, in some cases it might be more beneficial to society if instead of punishing criminals, it allows them to eliminate the negative impact of his crime, for example by means of compensation or restitution to the victim. Incorporating the reasoning given above, the Code considers five sets of circumstances to serve as legitimate grounds for relief from criminal responsibility: active repentance 55

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conciliation with victim change of situation expire of periods of limitation Active repentance implies that offenders, after committing a crime, voluntarily acknowledge their guilt, facilitate the eliciting of the crime, and compensate the damage caused by the crime. Only an offender who for the first time has committed a crime of minor gravity is eligible for relief under the above mentioned circumstances. The same eligibility criteria applies to the offender who is seeking relief on the ground of conciliation with the victim or change of situation. Reconciliation with the victim is a new concept adopted in Russian criminal legislation. Shown to be effective in other countries, it is considered to have the potential to significantly reduce the case load, that is faced by the courts, to prevent reoffending, and to extend a victim's rights to receive adequate compensation for the harm caused as a result of an offense. Change of situation as grounds for relief from criminal responsibility appeared in post-soviet criminal legislation in the 1990s. Due to rapid social-economic changes some acts previously considered criminal lost their social dangerousness. A typical example may be the crime of speculation (spekulyatziya), i.e., buying consumer products and selling them in order to get unearned profits. After liberalization of the Russian market the crime of speculation, although still in the Code, lost its 56

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socially dangerous character due to a change of situation, and, therefore, a person who has committed it should be relieved of criminal responsibility. The concept of limitation has always been recognized in Russian criminal law. It represents a humane approach towards offenders who committed their crimes sometime in the past but have lived law-abiding lives since then. Normally, periods oflimitation slightly exceed the maximum lengths of imprisonment, that are specified for a respective offense. For instance, a period of limitation should not exceed two years if the respective crime is of minor gravity, i.e., punishable by deprivation of freedom for a term of up to two years. The only exceptions to this rule are crimes against the peace and security of mankind (e.g., genocide, ecocide, war crimes, etc.). Persons charged with committing these offenses may not seek relief from criminal responsibility on the grounds of expiration of periods of limitation. The Code recognizes four sets of circumstances which serve as grounds for relieving a person from a punishment: conditional-early relief from serving punishment substitution of unserved part of punishment by milder type of punishment illness deferral of serving punishment by pregnant women and women having children under the age of eight. 57

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Conditional-early relief in Russia is analogous to parole granted by the American system to the convicted persons for their good behavior while they are serving their time in the institution Granting an early relief the Code considers not only the offender's record, but also introduces some formal requirements regarding the time actually served in the correctional facility. In this sense, the Code utilizes American truth in sentencing schemes which require that offenders serve no less than a predetermined term of years in prison before they are granted the right to be considered for parole. In Russia, the terms which should be actually served in prison closely correspond to the gravity of the offenses. Conditional early relief may be applied only after the convicted person has served not less than half of the term of punishment for a crime of minor or average gravity, not less than two-thirds of the term for a grave crime, and not less than three-quarters of the term: for an especially grave crime. In any case, the actual serving of a term of deprivation of freedom should not be less than six months. If a person is serving a life-term imprisonment he or she may be eligible for parole only after he or she serves at least 25 years After the relief is granted the offender is required to remain under supervision just as in the case of probation. Another method of rewarding an offender's good behavior is the substitution of a milder type of punishment for the unserved portion of his punishment. After serving one-third of the term an offender may be eligible for 58

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such a substitution. The above described grounds for relief from punishment are designed to promote rehabilitation of an offender and his or her compliance with correctional terms and conditions. The other two grounds are used mainly for humanitarian reasons. To be relieved on the grounds of illness an offender should suffer a mental disturbance that deprives him ofthe possibility to be aware of the actual character and social danger of his actions, or to direct them. It means that after committing a crime the offender acquires serious mental illness which makes him or her unable to comprehend the nature of his or her conduct or gravely affects his or her ability to act consciously. Other grounds for relief in connection with illness may be another grave illness, not necessarily mental illness. In both cases, a court may grant relief from serving punishment by an offender suffering from an illness. Pregnant women remain under state care even if they are found guilty of committing a crime. Therefore, they are granted a temporary relief from punishment until their child attains eight years of age. The same rules apply to women who already have children under the age of eight. When the child attains eight years a court then decide whether to relieve the convicted mother from the remaining part of the sentence or to return her to the institution. A few words should be said about such institutions as amnesty and clemency or pardon. An amnesty is declared by Russian parliament, the State Duma of the Federal Assembly, with respect to an individually indefinite group of 59

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persons. Persons who committed a crime may be relieved from criminal responsibility and punishment, a punishment may be reduced or replaced by a milder type of punishment, or such persons may be relieved from a supplementary type of punishment. The record of conviction may be removed from persons who have served a punishment by an act of amnesty. Pardon may be granted by the President of the Russian Federation with respect to an individually determined person. A person convicted for a crime may be relieved from the further serving of punishment or the punishment assigned to him or her may be reduced or replaced by a milder type of punishment by an act of pardon. The record of conviction may be removed from the person who served punishment by an act of pardon. These two measures of penal policy adjustment has been known to Russian criminal law long ago the Code of 1996 was enacted. Controversial by nature amnesty, just as clemency, still plays an important role in sentencing providing additional flexibility to the system. 6.6 Conclusions Post-soviet criminal law regulation of sentencing phase of a trial has changed significantly. The changes affected both general principles of assignment of punishment and specific rules which regulate assignment of conditional sentence, terms of probation, and parole. 60

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General principles of assignment of punishment not only lost their socialist rhetoric, as it was noticed by some Western authors, but also changed in their substance. Reformulated old principles carry new meanings which emphasize more humane approach towards sentencing in the Russian Federation and direct the court to impose a punishment that is more offender-oriented. Issues such as individualization of punishment, its proportionality, and capacity to rehabilitate an offender have acquired tnore attention in the current Code than ever before. Increased number of mitigating circumstances in Article 61 also point in the same direction. Thus, the analysis of respective provisions ofboth present criminal code and its predecessor discloses a tendency towards further humanization and liberalization of sentencing in Russia. At the same time, there is evidence that the criminal code also has been amended with several more repressive provisions. A more extensive list of aggravating circumstances is one of them. Repressiveness of the Code is not an end in itself, of course. Those amendments aimed at securing the rights of a victim and society in general. General principles were designed in an attempt to ensure that two prime purposes of punishment are achieved: the best possible efforts are made by the criminal justice system to rehabilitate an offender and the interests of victims and the rest oflaw abiding members ofRussian society are secured. 61

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Another important observation is that despite revolutionary socioeconomic changes that occurred in Russia during the last decade, legislation on sentencing tends to develop evolutionary. Legislation certainly responds to the challenges presented by new socioeconomic conditions developed in the country. One of the most vivid examples is the inclusion of the jury in the decision making process during sentencing. The aim of this institution is to make the process more democratic. Although sentencing entirely rests in the court competence, a judge now is required by law to adjust sentence accordingly if a jury decides that an offender deserves leniency. How this provisions of the Code will effect the sentencing process in Russia is still a matter of academic discussion. Jury trials have not been established across the country yet, and data regarding their impact on sentencing is not available. However, starting this year the concept of judicial reform suggests that jury trials start functioning in the majority of federative subjects of the Russian Federation. Thus, the data will soon be available for analysis. Although amnesty and pardon do not relate to assignment of punishment by a judge their impact on sentencing in Russia is considerable. Amnesty remains an important means used by the state to correct its penal policy if necessary. As mentioned above, in Russia, only the State Duma enacts the amnesty decree. Therefore, it is always a matter of political debate and not just a criminal justice 62

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measure used for the purposes of penal policy adjustment. Amnesty is still a symbolic act that is usually proclaimed on holidays and anniversary occasions. Perhaps, it should be used more rationally and based on the actual needs of the correctional system (e.g., overcrowding) which are not always connected with the national holidays. Interestingly, in many Western countries amnesty as a way of reducing prisoners was deemed to be not effective. Russia has been facing severe overcrowding in its penal facilities for many years, with inmates in pretrial detention sometimes waiting as long as several years for their cases to come to trial. In this circumstances, amnesty helps to reduce the number of inmates. In 2000, in response to this crisis, the Russian Parliament approved an amnesty that resulted in the release of 120,000 pretrial detainees and sentenced offenders. This reduced the inmate population to 980,000 as of September 2000. As a result of the continuing rise in the prison population in the United States along with a major prisoner amnesty in Russia, the U.S. rate of incarceration surpassed that ofRussia in 2000 and the U.S. is now the world leader in imprisonment. The U.S. rate of 690 prisoners per 100,000 population is now greater than the Russian rate, which declined from 730 per 100,000 in 1999 to 675 per 100,000 in 2000. Clemency also adds flexibility to the sentencing policy in Russia. At the same time, one should not forget that extensive implementation of amnesty and clemency mechanisms in order to reduce prison population or for 63

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whatever purposes may produce the results opposite to those which are deemed desirable by the criminal justice system. Excessive amnesty eventually undermines court's authority to punish criminals and makes the efforts of law enforcement agencies appear useless in the eyes of ordinary citizens. Therefore, these means should remain measures of last resort in penal policy. 64

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7. Changes in the Russian Penal Policy 7.1 Introduction By 1997, Russia has established a comprehensive system of sanctions that was designed to be consistent with the democratic values adopted in the new Russian Constitution of 1993. It was the main goal of the Russian criminal law reform, that sought movement away from repressive Soviet model of sentencing towards a more lenient and flexible penal policy. Previous chapters revealed a framework of the current system of sanctions and sentencing principles as they are established in the Criminal Code of 1996. However, a question of whether the goals of reform were successfully achieved remains. In order to provide credible answers, an evaluation of the changes in both the Russian sanctioning system and sentencing patterns is necessary. 7.2 Transformation of the Sentencing Ideal Criminal substantive and procedural legislation is one of the main forms of penal policy manifestation. The mechanism of policy goals transformation into criminal code's provisions was well described by Sviridov (1997). The analysis of this process allowed him to reach a conclusion that although many factors 65

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influence the legislation process the outcome always reflects currently dominating values and approaches of the policy makers that they take to resolve vital social problems. Lobbing groups held similar or opposite positions regarding a specific penal policy issue, whichever appears to be dominant at a specific time will still represent a distinct type of legal thinking about crime and punishment whether it will be a "tough on crime" approach or its more liberal alternative. Thus, changes that occur in penal policy may normally be documented in normative regulation provided in the Criminal Code's respective sections. The Code's section that describes the goals of punishment has undergone the most striking changes. Goals of punishment, as they are established in the Code, provide legal justification for punishing criminals. They are intended to be most visible and provide an insight into current views on punishment shared in the society and among policy makers. Therefore, it should be considered the most indicative in terms of reflecting the current direction of the Russian penal policy. As it has been described before, the striking difference between the current Criminal Code's approach to the notions of punishment and its goals and the approach taken by its predecessor is the abandonment of retributive justification. The Code plainly rejected retributivism as a penal policy objective. Instead, the emphasis was shifted towards rehabilitation. The latter is mentioned among the goals of punishment in Art. 43 of the Code. Besides, it is also pursued indirectly, 66

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through the goal of crime prevention. The goal of crime prevention is achieved successfully, if the released offender does not commit any more crimes. It is possible if such an offender gave up his antisocial activities, i.e., if he is rehabilitated. In other words, true crime prevention should involve resociolization or rehabilitation of an offender. Thus, even in the goal of crime prevention the Code emphases rehabilitation as a guiding principle. In contrast, the Code of the RSFSR, that was in effect until1997, included direct reference to retribution in its section on the goals of punishment. The importance of this reference can not be underestimated. As a guiding principle it framed the sanctioning system. The system was structured accordingly: starting with the most severe punishment recognized in the Code. The principle should also be taken into account by a judge when he assigned a specific punishment. Thus, it produced significant impact both on the system of sanctions and on sentencing phase of the trial. An exclusion of retribution from a list of the goals of punishment was in some respects a symbolic act. The goal was to show that the Russian criminal law moved away from repressive models of sentencing that were in practice during the Soviet period. Another aim was to direct the judiciary towards leniency in sentencing. This claim is supported by several comprehensive and interdetermined provisions of the sanction system and the sentencing section of 67

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the Code. The structure of the sanction system is constructed so that the less severe types precede the more severe. A more severe sentence may only be considered ifthe less severe ones fails to achieve the goals of punishment. Therefore, both the sanction system itself and sentencing principle included in Article 60 of the Code orient the judge towards leniency in sentencing. The punishment is assigned in strict accordance with the character and degree of social danger of the crime. The personality of the offender is required to be taken into account. All the above mentioned provisions are meant to be served as the practical means that are used in order to assign a just punishment which should facilitate the rehabilitation of the offender. Rehabilitative ideals are in the basis of current system of sanctions as well. As the material covered in Chapter 1 shows, the system went through significant transformation. Many new types of sanctions were established. Thirteen sanctions listed in the respective section of the Code aim to provide the flexibility necessary in order to rehabilitate a particular offender. Systematic analysis of the list of sanctions shows that if applied they would produce significant improvement of penal policy in terms of making it more offender-oriented and thus more conductive to rehabilitation. However, the total number of types of punishment that are available to the judge is much less than that found in the Code. Among the thirteen types of punishments only seven are actually implemented. Besides, 68

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some of them are so rarely in effect that their impact within the sanction system is insignificant. There are reasons to conclude that almost half of the existing types of punishment do not work. This situation is caused by the dilatory clue in the Code. The dilatory clue postpones putting into operation three of the thirteen types of punishment. Arrest, compulsory works, and limitation of freedom will be available as sentencing options after specific conditions are met. The delay is stipulated for the lack of organizational and financial resources required to successfully apply the sanctions. The Federal budget lacks the fmancial resources for the construction of arrest houses and centers of offenders' improvement. Compulsory work does not require new institutional facilities to be constructed. However, this type of punishment involves the creation of new jobs. The existing job market does not accept the offenders convicted to exercise compulsory works. The work is free to the the offenders, but they are not profitable for their employers. All their wages must be transferred to the federal budget. Therefore, employers have no interest in providing working spaces to the offenders sentenced to compulsory work. Initially, all three types of punishments were meant to start functioning no later than 2001. However, due to the lack of resources and required conditions their implementation was postponed once again until2004, 2005, and 2006. (Zubkova, 2002: 185). This is a most optimistic scenario, but it should be noted that others exist. It has been estimated, for 69

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example, that the delay might be even longer: the sanctions will not take effect until 2009 (Dubinin, 2002). There are other circumstances that aggravate the situation. The other types of punishment that do not involve isolation of the offender from the society are applied quite infrequently. For instance, fmes are rarely implemented. It has been established that most of the offenders are poor and do not posses any valuable property that could be used to pay the fine. The majority are unemployed, and thus can not pay their bills, not to mention the fines that are imposed upon them as a criminal punishment. As a result, the frequency with which fines were applied in Russia started decreasing since 1998. In 1998, the number of offenders who were sentenced to fines was 8.2%, in 1999 it reduced to 6.7%, and in 2000to 5.2% (Zybkova, 2002). Obviously, the effectiveness of this type of punishment decreases accordingly. Discussing this particular punishment option, it should be noted that the fine has a peculiar position in Russian system of sanctions. It should be considered when comparing Russian sentencing trends with those of other countries. Historically, Russian law that punishes socially disapproved behavior splits into two branches: administrative law and criminal law. Administrative law provides sanctions for relatively minor offenses as opposed to criminal law that deals with socially dangerous conducts labeled as crimes. It distinguishes Russian response to crime (or what is defined as crime) from those 70

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of many European countries, in which criminal justice systems do not recognize the distinction between administrative and criminal conduct. For instance, if we consider Finish sentencing statistics it would appear that most of the offenses punishable under Finish criminal law are punished by the fine. That does not necessarily imply that Finish sentencing policy is more humane and lenient than Russian. The fine remains the principle punishment in Finland mostly because of the absence of the above mentioned distinction. In Russia, although the fine is present in the Criminal Code its application faces financial and organizational obstacles. Correctional tasks (ispravitelnue rabotu) also contain a great correctional potential. Currently, it is not used to its maximum because of financial and organizational constrains. According to the law, this type of punishment can be assigned to those offenders who already have a job. Due to high levels of unemployment among the offenders this type of punishment faces huge challenges upon its implementation. Hence, the numbers of offenders convicted to correctional works decreases considerably. According to the data presented by GUIN (Glavnoe Upravlenie Ispravlenia Nakazanii) of Ministry of Justice of the Russian Federation, the respective numbers were 8.9% in 1995, 8.2% in 1996, 6.9% in 1997, 5% in 1998, 4.7% in 1999, and only 4.2% in 2000 (Dubinin, 2002). 71

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Supplementary punishments do not play an independent role in sentencing. Although they do provide additional flexibility to the system, their share in distribution of punishments is insignificant. For example, the number of offenders convicted to deprivation of the right to occupy specified offices or to engage in a specific activity deprivation of special, military, or honorary title, rank, and government awards was limited to 0.3% in 1999, and 0.2% in 2000 (Dubinin, 2002). Limitation in military service and keeping in a disciplinary military unit can be applied to a very limited circle of military offenders. The value of confiscation of property as an alternative punishment is often underestimated. Currently, it only can be used as an additional punishment assigned primarily for the property crimes. Thus, its weight in the total number of punishments applied is insignificant. In 2000 it was 0.3%, in 2001 0.2 %, and in 2002 0.2%. In the prevailing circumstances, confiscation of property should be used to the utmost, with changes it in character, content and grounds for application. First, this remedy should be transferred from the category of additional, to that of principal and additional. Confiscation of part or all property should be used not only in cases when it is directly stipulated under the law, but as an alternative to imprisonment as well. Execution of confiscation does not involve additional fmancial resources. Its effects on the offenders are believed to be less damaging than effects of imprisonment: the offenders are not isolated from 72

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the society, their social relations and family links are preserved, it is easier to return them to the normal life and achieve long lasting positive effects of the punishment. Thus, this punishment may significantly improve the effectiveness of the system by reducing the costs associated with execution of punishments and simultaneously increasing its rehabilitative potential. Consequently, deprivation of freedom remains the most broadly applied punishment in Russia. Suffice it to say ; it is overrepresented in the sanctions of the Special Part. The weight of deprivation of freedom in the total net of punishments applied by the Russian courts does not remain constant. Throughout the years it has fluctuated in the range from 25% to 70%. However, its leading role in the Russian sentencing system remains constant. For example, in 2000 the total number of prisoners reached 1,201,600; 353,600 of those (29.4%) were sentenced to deprivation of freedom (Zubkova, 2002). Deprivation of freedom as a most frequently applied punishment was followed by fines which were applied in 5.2% of cases (Savelev, 2001). This is a serious issue that requires immediate attention because of the consequences it has on the penal policy and its effect on the system of corrections in Russia. Coupled with the raise in crime rates sentencing where deprivation of freedom remains a predominantly applied punishment inevitably results in high incarceration rates. Additional concern is the extensive use of pretrial detention. Russia has been facing severe 73

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overcrowding in its penal facilities for many years, with inmates in pretrial detention sometimes waiting as long as several years for their cases to come to trial. As a result of the continuing rise in the prison population in the Russian Federation, in 2000 Russia became the world leader in imprisonment. In response to this crisis, the Russian Parliament approved an amnesty that resulted in the release of 120,000 pretrial detainees and sentenced offenders. This reduced the inmate population to 980,000 as of September 2000. As in the Russian Federation, the U.S. rate of incarceration has been increasing continuously for nearly thirty years. From approximately 330,000 inmates in prison and jail in 1972, the inmate population has grown to 1,890;000 by the end of 1999 (Starkov, 2001). The total number of prisoners of penitentiary institutions in Russia decreased by 117,000 during 2000. The number of prisoners reduced at the same rate in 1987-88. Now there are 655 prisoners per 100 thousand people in Russia (over 700 in the USA). If the Russian Federation Ministry of Justice program on the reduction of prisoners is realized, by 2004 the number of prisoners in Russia will reduce by 400 (per 100 thousand people). Amnesty, declared by the State Duma in May 26, 2000, is considered to be the main reason in the reduction of the number of prisoners. As many as 222,000 prisoners were released from penitentiary institutions by December 1 (Dubinin, 2002). According to preliminary estimation 120 thousand prisoners were expected to undergo amnesty 74

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(Kryglova, 2001). However, reduction of prison population is claimed to be not only a matter of amnesty. During previous years, despite annual amnesties, the number of prisoners remained the same or even increased. In 2000, GUIN administration did everything possible to have the number of people entering prisons not only the same but decrease and the number of people leaving prison increase. According to the opinion of Pretrial Detention Department of GUIN (Sechin, 2000), investigators and prosecutors who are in charge of sanctioning Pretrial detention very seldom apply this measure of restraint. Mainly, the reduction of arrests is the result of the government's concern about living conditions at jails (sledstevnnui izolyator). It was in 1999, when Vladimir Putin, Prime Minister at that time, had two conference calls with governors, heads of regional prosecutor's offices, directorate of interior affairs, Justice and other departments. Putin called on regional leaders to do everything in their power to unload jails. There was immediate result in a number of regions: in November 1999 the measure of restraint, not related to imprisonment, was changed to 4 thousand people detained at Investigation Isolators (Sechin, 2000). The reduction of prisoners could be much more substantial if not for the judges still delaying the consideration of criminal cases. At present time over 60% of detainees in jails are people on trial. Besides, GUIN has opened special local jails in 166 colonies, mainly for the accused awaiting the enforcement of the 75

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verdict. It is not as difficult to serve there as at ordinary jails: 7-10 thousand people occupied the area intended for 16 thousand people. GUIN administration at the Ministry of Justice does everything possible to place of extra prisoners, because of increased costs. Often, they use release on probation. For example, in the Murmansk region over 70% of prisoners are released on probation. During 9 months of last year a Presidential Committee in charge of Remission issue released or shortened the custodial sentences of 12,5 thousand prisoners (Dubinin, 2002). Amnesty as well as early and conditional release should remain a means of last resort. Therefore, the decline of prison population that occurred in 2000 in Russia can not be considered a success of Russian penal policy. On the contrary it reflects the weakness of the system. Despite well designed reform of the current criminal legislation, amnesty still produces a disproportionally large number of offenders sentenced to deprivation of freedom and continues to relay on extrajudicial measures (e.g., amnesties and clemency) in dealing with such problems as overcrowds of Russian prisons. This is an obstacle that still has to be overcome. Thus, the most effectively implemented alternative to imprisonment is conditional sentencing. The available statistics show how the popularity of this sentencing option increased through the entire period it has been available. From 76

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29.6% to 36.7% The number of conditional sentences handed down in a year grew from 29.6% in 1995 to 36.7% in 1999 The growth was especially rapid between 1997 and 1999 (Zubkova, 2002). Another interesting trend that could be observed since the present Criminal Code took effect was the changes in sentencing patterns in regard to imprisonment and its terms. Between 1997 and 1999, the average length of of sentences of imprisonment fell from 5.7 to 4.3 years (Zubkova, 2002). The total number of sentences of imprisonment however raised consistently. These changes can be explained primarily by new defmitions in sentencing for a category of property crimes. Long custodial sentences imposed for traditional property crimes kept the prison population at its peak level during the entire observed period. High minimum penalties and rigid offense definitions for aggravated forms of theft affected the number of Russian prisoners in the 1990s. However, in late 2002 new defmitions and new punishment ranges were introduced. As a result there was a change in sentencing practice. In 2001, 34.6% of offenders sentenced for larceny received a custodial sentence. A year later, this had decreased to 33.2% (Shmelev, 2003). Courts are encouraged to use short sentences of imprisonment in the Supreme Court general instructions. The full effects of these amendments are hard to estimate though. Sentencing rules for multiple offenders also changed. 77

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The early experience indicates that on the whole the new sentencing options have been adopted in the way that the legislators wanted. In this context, punishment in the form of sending convicts to settlement colonies institutions of a semi-open type, may become an alternative to real imprisonment. Currently, only 16.4% of offenders serve their sentences in these institutions (Starkov, 2001). The judge is unable to place an offender into a settlement-colony if an offender is guilty of any grave offense punishable by more than two years. Therefore, lists of the kinds and categories of people, who may be sentenced to such a penalty, should be extended. This could be done by restoring the settlement-colonies which formerly existed for offenders who had committed intentional offenses of little and medium gravity and sentenced to terms of punishment under 5 years. Besides, it is proposed to send to such settlement colonies those who commit offenses of neglect, irrespective of length of term. So far, however, the rates of imprisonment show a tendency to decline. Despite the fact that custodial sentencing continues to prevail in Russia, the bare presence of a variety of alternatives to imprisonment in the Code shows that a shift towards rehabilitation and leniency has occurred. It is an indicator of changes in penological ideals and recognition of rehabilitation and humanism as priority goals in penal policy implementation. It possesses a huge potential that, if 78

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properly applied, could significantly reduce the prison population and produce positive impact on the sentencing climate in the Russian Federation Russian Criminal law, however, has not lost its repressive potential. To state the opposite would be to suggest that radical changes in penal policy occurred, which is simply not true. Penal policy as noticed by Nazarenko (2000) is notorious for its conservatism. Therefore, any changes that do occur usually occur gradually. Basic legal and semantic analysis of the Code's statements shows that current criminal legislation continues to contain the repressive provisions of its predecessor. Although the system of sanctions in the present Code was rearranged according to newly adopted principles of sanctioning, it has not lost its repressive spirit which is an essential characteristic of any criminal law. The repressiveness of the system is inherently linked to the coercive character of any sanction contained in the Special part of the Code and becomes quite obvious from the general definition of punishment contained in the General part. A matter of particular interest in this respect is the sanctioning grid. Generally, the terms of imprisonment increased in comparison with the terms provided for in the Criminal Code ofRSFSR. For example, the present Code makes it possible to sentence an offender to up to 25 years of imprisonment. This is the maximum term provided for a single offense now. The maximum term recognized by the Criminal Code ofRSFSR was 15 years. Obviously, in this 79

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dimension the sanction system is more severe now than it was before. Another important issue to consider is the length of the terms for an aggregate of crimes and crimes that were committed by recidivists. These imply a punishment of 30 to 40 years of imprisonment. Such terms have never been in effect during the Soviet times. Life imprisonment remains a debatable issue. On the one hand, it is generally perceived to be consistent with general tendency toward leniency and humanism in the Russian sanction system. It substitutes for that death penalty that is commonly considered inhumane and excessively severe in a modern world. It is true that the Code includes life imprisonment as an alternative to death penalty and thus limits the number of crimes punishable by both to five which is less than 1% of the total number of sanctions contained in the Criminal Code. Given the situation with pending death penalty, life imprisonment happens to be the only possible punishment to select from for aggravating homicide, and some other crimes It may seem even more lenient if we consider the fact that life imprisonment does not always mean that a convicted person will remain in prison forever. Under exceptional circumstances even prisoners serving life sentence may be considered for parole and other forms of early release. On the other hand, the question of whether life in prison is a more humane sentence than death remains highly arguable. Sergienko (2001) claims that results 80

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of public opinion poll conducted in 1999 suggests that a significant number of respondents think that life imprisonment may be an even more severe sentence than a death penalty. Conditions of Russian prisons are notoriously bad and continue to degrade due to the lack of financial resources. The problems ofthe accommodation and maintenance of the different categories of convicts keep aggravating. The situation with convicts sentenced to life imprisonment in comparison with others is less vital, but still quite serious. According to the recent data (GUIN, 2002), the general-type corrective colonies are overfilled to 110% of capacity, colonies for the maintenance of tuberculosis (TB) convicts to 145% of capacity, the medico-prophylactic institutions to 126 %, corrective colonies for life prisoners to 105% of capacity. Sixty percent of the buildings are in emergency or otherwise unsatisfactory condition, requiring capital repairs. Still awaiting solutions are such matters as the maintenance of convicts whose death sentences have been commuted to life imprisonment, as well as of persons held in pretrial detention centers pending the commutation of a death sentence to life imprisonment by way of pardoning (total of850 inmates). The situation regarding medical care for TB patients in penal institutions, is assessed as extremely tense. Every year from 35 to 40 thousand convicts contract tuberculosis for the first time and some 30 thousand TB patients enter pretrial detention centers. The medical institutions of the penal system are overcrowded and lack normal conditions for 81

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maintaining the patients, requirements for feeding, medicines, and medical equipment are met by only 20-25 %. Because of the shortage of places in stationary TB institutions about 15 thousand TB patients are maintained in isolated sectors of corrective institutions, and some 2,000 among healthy convicts (GUIN, 2002). At present, medical service for detainees and prisoners does not comply with international standards of medical service in penal institutions and the right of every citizen to medical service and health protection stated in the Constitution of the Russian Federation. About 95% of medical institutions are situated in unsuitable buildings; due to lack of space it is impossible to open necessary laboratories and departments (GUIN, 2002). Medical personnel are unable to make correct diagnosis and treat without modem equipment. For these reasons, planned operations were postponed in many hospitals. It is more difficult to render qualified medical help due to the insufficient number of medical staff with 75% more doctors needed (GUIN, 2002). Providing adequate medical treatment faces another problem insufficient funding for basic nutrition needs of the inmates. The Federal Budget is supposed to provide 20 rubles and 10 kopeks per day for nutrition of each prisoner in a correctional institution but in reality sum is no more then 15-17 rubles (GUIN, 2002). Considering all the above it should not be surprising that many respondents found life imprisonment to be a harsher punishment than death. 82

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The death penalty is always perceived as a main indicator of penal policy changes It is true not only regarding its abolition but also the fluctuations in its implementation. Experts estimate that during the years of Soviet rule, between 30 and 55 million people were executed, died in prison camps, or in exile, and while being transported between camps (Milukov, 2001). Between 1962 and 1990 in the USSR, 24,500 people received the death penalty and more than 21,000 were executed (about 730 executions per year). We can compare this with the period of 80 years between 1826 and 1906, when in Russia 612 people were sentenced to death (7 people per year) and not more than 170 people executed (or 2 people per year) (Milukov, 2001). Judging from these numbers Soviet penal policy was an example of extreme severity and repression. By the end of 1990s there were over 30 crimes punishable by death in accordance with Russian legislation. During the period when the 1960 Criminal Code of the Russian Federation was in force, the greatest number of death sentences was given in early the 1960s. Thus, in 1960, 1,880 people were sentenced to death and 2,159 in 1961. Then the number of those sentenced to death reduced from 577 in 1965 to 379 in 1970. During perestroika (reformation) their number continued to decline from 407 in 1986 to 100 in 1989. Later, due to a sharp growth in crime the number of people given the death penalty increased to 160 people (Milukov, 2001). 83

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At the end of 1995, corrections housed 710 inmates sentenced to death whose destiny has not yet been decided. From 1989 to 1991, in Russia 470 people were given the death sentence and 228 were executed. Between 1993 and 1995, the number of executions reduced to 10 per year. This became possible in part due to legislative changes stipulating the possibility of commuting exchange the death penalty to life imprisonment. In 1995, the President pardoned only 5 people out of 91 prisoners sentenced to death who petitioned for clemency (Starkov, 1999). Boris Yeltsin, signed Protocol No. 6 to the European Convention on Human Rights, committing Russia to eliminating the death penalty to secure membership ofthe Council, one of Europe's main human rights bodies. In 1996, he called for a moratorium on judicial executions, traditionally carried out in Russia by a bullet to the head. But the Russian parliament has yet to ratify the protocol or act to strike the penalty from the criminal code. Capital punishment remains a sensitive issue in Russia. An overwhelming number of ordinary Russians favor capital punishment, their anger inflamed by killings blamed on rebels from breakaway Chechnya and organized crime. According to online news agency "Pravda.ru": A million signatures were delivered yesterday to Russia's State Duma (lower house of parliament) from the Nizhegorodskaya Region (an administrative district located some 500 km east of 84

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Moscow) in favor of retaining the capital punishment in Russia. According to the Ekho Moskvy radio, the signatures had been collected by an organization called the 'Union for Fighting Crime.' The action is reported to have been conducted at the initiative of Dmitri Savelyev, a member of the 'Union of Right Forces' faction at the Duma (Pravda.ru, 2001). Criminal justice officials in Russia historically are not exposed to much of public pressure and rarely consider public opinion when it comes to determining the direction of penal policy. President Putin was quoted once as saying that he was aware of public opinion on the death penalty but believed that state sponsored cruelty did nothing to fight crime and only engendered new violence. The President is convinced that Russia should uphold its five-year-old moratorium on the death penalty, despite widespread calls to reinstate executions. "The state should not assume the right which only the Almighty has -to take a human life," he said. "That is why I can say firmly -I am against Russia reinstating the death penalty." Amnesty International (2001) praised the position of President Putin and encouraged him to pursue this issue to the full abolition of death penalty in Russia. "Now is a prime time for the Russian President to follow his own words with action. By fully abolishing the death penalty, Russia can provide invaluable leadership as an important international player to countries 85

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which are still executing prisoners on death row, such as China, the United States, Saudi Arabia and others," Amnesty International (200 1) said. At present, the death penalty still remains in the Code. However, the Constitutional Court has ruled that as long as most Russian regions do not have jury trials, no court could hand down a death sentence. But the jury reform is on the way: by the end of this year court reform will have made jury trials the norm for serious cases in the majority of federative subjects. Unless the Duma scraps the death penalty first, this will pave the way for courts to start imposing death sentences again, making it harder to maintain the moratorium. Thus, this issue remains to be resolved before the last jury is established in Chechnya region in 2009. During the enforcement of sentences of imprisonment authorities can use the parole system to control the length of time actually spent in prison. Use of this system has also proven to be a very powerful tool in controlling prisoner rates. Any changes in the basic structure of the parole system will have visible effects on prison numbers. In Russia all prisoners except those few serving their sentence in medical centers because of their mental condition are eligible for parole. It should be noticed that at present, as result of recent reform the minimum time to be served before the prisoner is eligible for parole is reduced as compared to the one defined in criminal legislation that was previously in effect. 86

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In general it can be concluded that the severity of sentences has decreased. This is a result of changes in the penal ideology behind the sentencing provisions. The aim of the penal system is general prevention and rehabilitation. The assumption is that this effect is reached not through fear (deterrence) but through a moral-educative effects of punishment (rehabilitation). According to this assumption, the disapproval expressed in punishment is assumed to influence the values and moral views of individuals. As a result ofthis process, the norms of criminal law and the values they reflect are internalized. People are believed to refrain from illegal behavior not because it is followed by unpleasant punishment but because the behavior itself is regarded as morally blameworthy. This is the ideal the current penal system is seeking to achieve. Just as this ideology emphasizes the fairness and justness of sanctions, in sentencing it means proportionality, predictability, and equality. These ideas are now clearly expressed in the basic norm on sentencing. The leading principle of sentencing as it is recognized by present Code is proportionality. Although the foundation of this principle is often sought in retributive notions, the Code specifically emphasized its other side. The new perspective involves considering its value through the notions of liberty and the prohibition of misuse and arbitrariness. The principle of proportionality attributes practical meaning to the concept of the rule of law that became an inherent part of 87

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new Russian Constitution. The rule of law, legal safeguards, and the guarantees of citizens against the excessive use of force altogether form an important framework that promotes preventing overly harsh and unjustified punishments. Consistent with this principle, the Code also shifted an emphasis from the lower limits of punishment that is available to the judge to the upper limits. Judicial options are much less restrictive when considering the possibilities of imposing sentences that are less severe than the offender's act would have deserved. This order of priorities has been confirmed in several provisions of the Code which has not been recognized before. The first change to be evaluated here is the general right of the court to go below the prescribed minimum whenever exceptional reasons call for such a deviation. Also, the grading of offenses reflects the same idea: the list of criteria that make an offense an aggravated one are always exhaustive, while the list of mitigating criteria always allow additional circumstances to be considered as reducing the blameworthiness of the conduct. If a particular feature of the offense would call for a milder assessment, then the courts have the discretion to consider the offense one requiring special consideration, even if none of the criteria were specified in the law exists. The sentencing phase always involves assessment of seriousness of the crime and the degree blameworthiness of the offender. The Code provides a framework, which is specified in detail in general instructions issued by the 88

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Supreme Court. The starting points in assessing the social dangerousness of the conduct are harm, risk, and culpability. According to the recent instructions, the consequences and their seriousness are determined by the extent to which the crime has in fact either harmed or endangered the interest being protected. According to this criterion, all the offenses are graded in the General part of the Code into four categories. This is the first aspect to be considered by a sentencing judge. Culpability focuses on the mental state of the offender at the time of the offense. Criminal law recognized four sets of mental state ranging from intent to negligence. Some provisions did not change significantly. The role of prior convictions remains important in sentencing. The principle that first time offenders deserved more lenient treatment is widely shared among the judges. The survey of judges conducted by Sergienko (1997) shows that a first time offender convicted of a crime similar to the one committed by a recidivist would receive a more lenient sentence, usually a conditional imprisonment. The survey shows not only that the absence of prior record matters, but also that offender's prior convictions are inevitably perceived as an aggravating factor. The same study suggests that an offender with a prior record would get a harsher sentence for the similar crime. The reasons for identifying an offender's prior record as an aggravating factor, however, are far from clear. Much depends on the concept of 89

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culpability adopted, general policy considerations, and the overall aims in sentencing. Use of one's prior record as an aggravating factor may be justified by pointing out that those who repeatedly break the law are likely to do so also in the future. Therefore, the repeatedness elevates the dangerousness of the offense. It was also argued that those who still continued committing crimes after having been punished showed a clearer lack of respect for the provisions of the law. That was also perceived as a sign that rehabilitative efforts of the system failed This rationale is upheld in the current criminal legislation and the decisions of the courts. Guiding the sentencing judge is a highly controversial and delicate matter in any jurisdiction. This situation is also appreciated by Russian legislature, which constructed a sentencing model that allows for significant discretion of the courts and provides means to held the judges responsible for their sentencing decisions. This flexible model thus ensures that disparities in sentencing are a rare occurence. Critics who pointed towards disparities in sentencing could earlier be dismissed with references to judicial independence" and to the legality of the decision (that the punishment is still within the prescribed scale). Although judges are not legally obliged to take account of decisions of other judges and courts in practice they do consider decisions reached by the Supreme Court and its interpretations of the legal and factual issues. Retaining significant discretion of 90

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the judges, the model at the same time increases the predictability of the system and promotes equal treatment in similar cases. The normal punishment approach above all offers a tool for enhancing uniformity in sentencing. It is not, like most sentencing guidelines in the United States, a system used systematically to oversee the level of punishment and make the changes in this level that are required by an evolving criminal policy. In a civil-law tradition any initiatives in the matter should come from the legislature or be based on a source that has been accepted as an authoritative and valid source of sentencing rules. 'Rules' means generalized instructions concerning behavior. This is of particular relevance when we contemplate the activities of courts. Normally a court will decide an outcome of an individual dispute. But when such an individual decision is given the status of a precedent, it thereby becomes a rule. This status is usually explicit in the Anglo-American legal world. But the precedential effect will often be unavoidable, so that even in countries where the law denies it, it still operates. This was and is the case in Russia. The main difference with the Anglo-American precedent is that the continental, Russian, and especially Soviet precedent was weaker; it is easier for courts dealing with similar cases in the future to evade the issue. Higher courts in Russia have the special power to issue general instructions concerning the application of the law. There is no point in denying that these instructions add something to the existing law and are therefore themselves to be 91

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regarded as law. From this point of view, the Supreme Court is often considered a valid source of sentencing rules. With its power to generalize judicial practice, issue biding instructions and interpretations of law, and its authority to reverse lower court decisions, the Supreme Court is capable of directing judicial practice in the way it sees better achieves the main aims of penal policy. However, the Supreme Court in Russia has been rather reluctant to give concrete guidance on the level of sanctions. Nonetheless, it has pronounced its views on matters concerning the choice between different sentencing alternatives in different situations. The main document issued by the Supreme Court that provides comprehensive insight into the problem of sentencing is its resolution of January 10, 1999. The resolution contains detailed interpretations of the Code's sentencing provisions such as elaboration on mitigating and aggravating circumstances, general principles of sentencing, grounds for reduction of sentences. As a matter of fact, this resolution also supports the claim that a shift towards leniency and particular concerns about just and individualized punishment occurred. It directly orients the courts to consider the entire aggregate of circumstances of the crime in order to accomplish a just decision that will provide a basis for successful offender's reintegration into society. Individualization of punishment is one of the basic principles of the Russian penal policy under the new legislation. In regards to punishment there is first of all the duty of the courts to apply punishment 92

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within the guidelines provided for in the special parts of the criminal codes for the type of the criminal offense concerned. Since the limits are usually wide, the courts have the possibility to determine, within these limits, the kind and degree of penalty which correspond most closely to the gravity of the offense committed and to the character of the perpetrator. The court must take into account all circumstances which mitigate or aggravate the responsibility of the offender. In Russia just as in other countries with a civil law tradition the sanction level is determined through something that can perhaps best be described as a loosely organized process of argumentation. In this discourse the arguments are presented in the form of legislative acts (penalty scales, graded descriptions of offenses) and legislative history that shows the intended direction and in court decisions from higher and lower instances, in legal theoretical analysis, and in research on criminal policy. The discussion is conducted in a rather disorganized manner; mainly in training programs, seminars, and meetings for judges. In other words, the notion of normal punishment is not an "adopt first, then apply" model. It merely provides an orientation model that influences the attitude of the judge and a framework for discussions that have to be conducted again and again. Evidence of existing sentencing disparities has to be presented regularly in order to emphasize the importance of efforts towards more uniform sentencing practice. 93

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Part of a new legalistic tradition of the Russian system is that the courts do not accept instructions from outside. This is a model that was developed in the 1990s, although the independence of the courts had been recognized long before it was undermined by various quasi-legal documents issued by the communist party central committee. In order to prevent outside influence, current legislation includes a set of provisions that isolate the judiciary from direct pressure either of political or social nature. Therefore, sentencing in Russia continue to rest entirely within the judiciary competence. The legislature refrains from giving concrete sentencing recommendations. However, in 2003 the number of proposals that sought amending the Criminal Code and adjusting sanctioning grid increased. The majority of those proposals specifically addressed the issue oflenient punishments for some categories of crimes (e.g., sex offenses, crimes against children). This is an indicator that sentencing specifically and crime prevention issue in general is becoming a matter of political debate. This is a trend that is observed in many modem countries but that is also especially vivid in the United States. None of the suggested proposals made it even to the first parliamentary hearing. It supports the assumption that Russian penal policy remains expert oriented. 94

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7.3 Conclusions A review and an evaluation of the changes in the Russian system of sanctions and in the approaches towards sentencing leads to the following conclusions. Criminal legislation on the goals of punishment has undergone the most extensive changes. The striking difference between the current Criminal Code's approach to the notions of punishment and its goals and the approach taken by its predecessor is the abandonment of retributive justification. The Criminal Code of 1996 plainly rejected retributivism as a penal policy objective. Instead, rehabilitative ideals are now in the basis of current system of sanctions as well. Systematic analysis of the list of sanctions shows that if applied they will produce significant improvement of penal policy in terms of making it more offender oriented and thus more conductive to rehabilitation. Currently, deprivation of liberty remains a most broadly applied punishment in Russia. However, in late 2002 new definitions and new punishment ranges were introduced. As a result there was a change in sentencing practice which remains to be estimated. Meanwhile, the most effectively implemented alternative to imprisonment is conditional sentencing. Punishment in the form of sending convicts to settlement-colonies institutions of a semi-open type may become an alternative to real imprisonment 95

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Nevertheless, the bare presence of a variety of alternatives to imprisonment in the Code shows that a shift towards rehabilitation and leniency has occurred. It is an indicator of changes in penological ideals and recognition of rehabilitation and humanism as priority goals in penal policy implementation. It possesses a huge potential that, if properly applied, could significantly reduce the prison population and produce positive impact on the sentencing climate in the Russian Federation Russian Criminal law, however, has not lost its repressive potential as well. Generally speaking, the terms of imprisonment increased in comparison with the terms provided for in the Criminal Code of RSFSR. The court was given an option to sentence the offender to life imprisonment, which, given the conditions in Russian prisons, is often viewed as a punishment harsher than death penalty. The death penalty remains a sensitive issue in Russia The majority of the public do not accept the idea of abolishing capital punishment. But public opinion does not influence the policy makers decision on this issue. Currently, the Constitutional Court has ruled that as long as most Russian regions do not have jury trials, no court can hand down a death sentence. Thus, this issue remains to be resolved somehow before the last jury will be established in Chechnya region in 2009. 96

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During the enforcement of sentences of imprisonment the authorities can use the parole system to control the length of time actually spent in prison. Use of this system has also proven to be a powerful tool in controlling prisoner rates. Amnesty and pardon are used extensively as tools to adjust penal policy. This tendency may have negative side effects on the sentencing system, because it undermines the fairness of the process and authority ofthe courts. It must be admitted that some provisions of the Criminal Code did not change significantly. The role of prior convictions remains important in sentencing. In general it can be concluded that the severity of sentences has decreased. It is the result of changes in the penal ideology behind the sentencing provisions. The aim of the penal system is general prevention and rehabilitation. The assumption is that this affect is reached not through fear (deterrence) but through a moral-educative effects of punishment (rehabilitation). The leading principle of sentencing as it is recognized by present Code is proportionality. Although the foundation of this principle is often sought in retributive notions, the Code specifically emphasized its other side. The new perspective involves considering its value through the notions of liberty and the prohibition of misuse and arbitrariness. The ways the sentencing judges are guided also promotes ideas of rehabilitation and humanism. The principle of 97

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proportionality attributes practical meaning to the concept of the rule of law that became an inherent part of new Russian Constitution. A comprehensive evaluation of what has happened and is still happening is beyond the scope of this research, but it is important to point out that the sanctioning system in Russia still has to face the "revolution" as to its structure and the impact of its changes on the Russian criminal justice system. A trend towards transformation has gained ground. Although it is difficult to make any predictions about the forms this transformation will take, it is possible to identify several major areas that will undoubtedly require more detailed examination in the future studies of the Russian sanctions and sentencing. These include the effectiveness of the new types of sanctions that were introduced in 1997. They all fall into the intermediate sanctions category and promise to provide effective solution to the problem of prison overcrowding. Their implementation in other countries, however, suggests that in some cases introducing intermediate sanctions into the system of punishments may result in the net-widening effect. Therefore, one of the prospective areas for the future research should be the evaluation of Russian intermediate sanctions in action. This research provides a basis for comparative analysis of the Russian sanctions and sentencing. Future studies in this field should identify common issues and themes in Russian and Western sentencing and to emphasize some of 98

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the important similarities and differences in these systems. The common features may include not only broadly similar sentencing purposes, procedures, and alternatives but also similar recent trends (e.g., toward humanism of the system in general, but increased severity regarding certain categories of offenses, particularly for drug related crime). Although Russian Criminal Code does not explicitly incorporate restorative justice model, it nevertheless provides sufficient legal basis for the future development of the restorative and community oriented justice ideal. Compared to its soviet predecessor the current Code reflects the tendency to give greater attention to the interests and input of crime victims and their families, and there is reason to believe that various forms of restorative justice will continue to thrive. Victim-offender mediation, restitution, and community service programs and other forms of restorative justice can be successfully employed. They will perfectly accommodate the current penal reform objective for humanization of Russian penal policy. Such programs tend to have a moderating effect on sentencing severity because they emphasize forward looking, "healing" goals reparation, forgiveness, victim-offender or community offender reconciliation and because the goal of maximizing the offender's ability to pay restitution or perform community service requires that the offender be released from custody. 99

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Examining the growing similarities in sentencing principles, laws, and practices in Russian and Western systems may provide some possible explanations for the causes underlying this convergence. This discussion lays the foundation for an examination of some of the most important differences that remain. The exploration of Russian sanctions and sentencing suggests, despite differences in languages, laws, culture, and traditions, there is a substantial degree of similarity in the sentencing purposes, procedures, and alternatives currently employed in Russian and Western systems. Many Western countries have also experienced a similar evolution in penal theories since the late eighteenth century, beginning with the Classical school (emphasizing proportionality and deterrence), switching to a treatment-oriented "offender-instrumental" approach at the end of the nineteenth century, and recently returning to a mix of offense-based and risk management approaches, with an ongoing struggle between prison-reductionists and prison-promoters (Davies 1996, pp. 156-69). Will Russia sanction and sentencing system develop in a similar way is a question that remains to be answered. 100

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Sechin, A. I. (2000). Predvaritelnoe zaderzhanie v Rossii [Pretrial detention in Russia]. Moscow: Moscow University Press. Sergienko, U. V. (1997). Naznachenie nakazaniya [Sentencing]. Moscow: Moscow University Press. Sergienko, U. V. (2001). Lishenie svobody [Imprisonment]. Moscow: Moscow University Press. Shestakov, D. A. (1998). Rossiyskaya ugolovno-pravovaya politika pod uglom zreniya istoricheskoi tendentsii k smyagcheniyu repressii [Russian penal policy and historical tendency towards leniency]. In Pravovedenie, 3, 4557. Shmelev, A. A. (2003). Ugolovnaya politika v Rossii [Penal policy in Russia]. In Pravovedenie, 4, 56-63. Stanovski, M. N. (1999). Naznachenie nakazaniya [Sentencing]. St. Petersburg, Russia: Yuridichesky Center Press. Starkov, 0. V. & Milukov, S. F. (2001). Nakazanie: Ugolovno-pravovoy kriminologichesky analiz [Punishment: legal and criminological analysis]. St. Petersburg, Russia: Yuridichesky Center Press. Strychkov, N. A. (1978). Ugolovnaya otvetstvennost i ee realizatziya v borbe s prestupnostyu [Criminal responsibility and its realization in the fight against crime]. Saratov, USSR: Saratov University Press. 106