Nikolai STRUCHKOV

Law
Theory
Practice

Progress

Publishers

Moscow

Translated from the Russian by Oleg Stieffelmaft Designed by Yevgeny Aksyonov

CONTENTS

H.

BocnHTanne aaitoii, TeopHJi, npaKTHKa

Ha UHMIUUCKOM

Page Preface ................. 5

Chapter 1. Social and Legal Measures for the

Prevention of Crime....... 9

1. Soviet Penal Policy and Its Significance in Re-educating Offenders..... 9

2. Social Prophylaxis---the Priority in Crime Prevention.......... 13

3. Criminal Law Means for Preventing Crime............. 27

4. Punishment---a Means of Correcting and Re-educating Offenders. Types of Punishment............. 35

Chapter 2. Procedure and Conditions for Executing Punishment in the Form of Imprisonment ............'. . .

1. Concept, Social Purpose, and General Prerequisites for Effective Re-education

of Imprisoned Persons........ 49

2. Prerequisites for Effective Re-- education of Imprisoned Persons..... 55

A. Individualization of Punishment (Imprisonment) and Classification of Convicted Persons........... 55

B. Term of Imprisonment Allotted by

the Court............. 65

3. Corrective-Labour Establishments

and Centres for Pre-trial Detention ... 71

4. Basic Means for Correcting and

i «IIporpecc», 1982 English translation © Progress Publishers 1982 Printed in the Union of Soviet Socialist Republics

11002---195 ,

~^^1^^ 014(01)---82'

fte-educating Offenders Serving Sentences

of Imprisonment........... 78

5. Regime of Imprisonment and Its Educative Role........... 79

6. Labour by Imprisoned Persons 101

7. Educational Work with Convicted Persons; Schooling and Vocational Training ................ 110

8. Everyday Life Facilities and Medical Services for Imprisoned Persons . . . 116

9. Further Improvement of the Forms

and Methods of Early Discharge .... 119

10. Post-penitentiary Supervision of Discharged Persons and Assistance to Them 136

11. Public Contribution to Correction and Re-education of Offenders and Work

with Discharged Persons....... 143

Chapter 3. Legal Status of Imprisoned Persons.

Guarantees and Methods of Ensuring ... 157

1. The Concept of Legal Status of Convicted Persons.......... 157

2. Legal Status of Imprisoned Persons ............... 165

3. Responsibility of Imprisoned Persons for Offences Committed...... 173

4. Guarantees and Means of Ensuring

the Legal Status of Imprisoned Persons 173

Conclusion............... 187

Subject Index.............. 191

PREFACE

The problem of corrective practices is one that attracts the attention not only of specialists, but also of the public at large. The UN congresses on the prevention of crime and treatment of offenders, which are held every 5 years, have long since established the necessity of subjecting criminals not only to imprisonment, but also to other forms of punishment and correction which do not entail isolation of the offender in special establishments.

The Sixth UN Congress on the prevention of crime and treatment of offenders, held in Caracas in AugustSeptember 1980, examined as an independent topic the problem of deinstitutionalizing penitentiary systems and the consequences of this for convicted persons who remain in prisons. This is because along with new forms of correction, imprisonment will still remain in force, although the sphere of its application will be limited. For this reason the controversy over the purpose of confinement in prison still persists.

At the Eighth International Congress of Criminology held in Lisbon in September 1978, a number of dele-

gates expressed the opinion that imprisonment should hardly pursue corrective aims. The same opinion was voiced at the ad hoc meeting of experts called in Cambridge in December 1978 to discuss deinstitutionalizing penitentiary systems.

The advocates of this concept believe that imprisonment must pursue the sole utilitarian task of ridding society of criminals by putting them behind bars.

In the socialist countries, which co-operate with other UN members in the social field, among others the field of correction of offenders, this has failed to win any support. Their attitude was made clear by delegates of socialist countries and a number of developing countries at the First International Symposium on Penitentiary Systems held in Havana in November 1979.

The criminal law and the penitentiary system in the socialist countries pursue a different goal. The first task is to ensure a differentiated approach to offenders. Second, the system does not confine itself to punishment in the form of imprisonment only but makes use of a range of corrective means. Third, conviction, and punishment in particular, must not only correct the former criminal, but also prevent offences by others. Is the latter task a difficult one? It is. Is it feasible? In practical terms, yes, though not by itself but with the help of people.

The Soviet state practises the principle that every offender can return to socially useful activity. The state and its agencies protecting the legitimate interests, life, security, freedom, dignity, and the property, labour, residential and other rights of citizens do not take revenge on any person who has harmed society and its members, but strive to correct the offender and reform him into an honest-minded citizen.

This is the task pursued by a court when it secures punishment for a person found guilty of crime. Con-

viction and punishment are not an end in itself, but a means of correcting and reforming the offender.

A person committing crime that constitutes a danger to society must inevitably be held responsible for it. One of the forms of responsibility is criminal responsibility. However, even criminal responsibility does not always result in punishment. Yet punishment remains a valid measure so long as there still are people committing crime repeatedly and causing harm to other people and society as a whole. Punishment, especially that form of it that entails imprisonment, is an extreme measure applied to offenders.

Punishment is a complex socio-legal phenomenon. In terms of social ethics it expresses a negative assessment of a person's behaviour. Socially, punishment pursues humane objectives: to correct, to reform the offender, to eliminate any opportunity for him and desire on his part of criminal acts in the future; to use the fact of the conviction as a deterrent for others, thereby making it a factor of crime prevention. Juridically, punishment is an act of justice.

In the USSR punishment is inflicted only by court ruling. Punishment, particularly imprisonment, is administered only when a crime, i.e. a socially dangerous act qualified in the criminal code, has been committed, and when it is clear that no preventive measures, no social means of influence or education, or any administrative reprimand would lead to the correction of the offender and that such measures are inadequate.

Correct application of punishment and reformation of the offender are achieved mainly with the help of the law. The law specifies the features of each punishment, the conditions for its application, and exemption from it.

The efficiency of legislation depends on the scientific analysis of controlled social phenomena and clarity of

legal norms. Fundamentals of law cannot be based on jurisprudence alone. The latter develops optimum solutions in collaboration with sociology, psychology, pedagogics and other branches of science.

Science is closely interrelated with the practical application of legislation. It is in practice that the effectiveness of a law and the correctness of any theory are tested. Hence, only by studying the practical state of affairs can we evaluate the efficiency of the existing system of crime prevention and reformation of criminals in the USSR.

In order to understand the Soviet system of correction and re-education of convicted persons, i.e. the reformation of ex-criminals into good citizens, it is necessary to disclose the essence, the contents and aims of punishment in general, and of imprisonment in particular.

This book deals with three aspects of the system of re-education of convicted persons: the content of the law and all other related provisions for the execution of punishment; the role of theory in educating convicted persons, which is influenced by the law, and also by sociology, psychology, and pedagogics; and the practice of correction.

The administration of punishment in the Soviet Union has the following basic features: it pursues the humane purpose of correcting the criminal and remaking him into a useful member of society; in the course of punishment the convicted person deprived of freedom is re-educated; in the Soviet Union it is mandatory to ensure full observance of law and to guarantee .the rights of any person held in a penitentiary establishment.

Chapter 1

SOCIAL AND LEGAL MEASURES FOR THE PREVENTION OF CRIME

1. Soviet Penal Policy

and Its Significance

in Re-educating Offenders

The expression "penal policy" is widely used to denote the activities of the state in crime control. It must be borne in mind, however, that this expression, coined by Anselm Feuerbach in the middle of the last century,* has acquired different meanings since then. F. Liszt, for one, regarded penal policy as an intermediary between criminology and criminal law philosophy, on the one hand, and criminal law, on the other. ''• W. Sauer believes that penal policy is an integral part of criminology.^^3^^

At present, many authors underline the importance of penal policy as a deliberate system of social anti-crime reactions. M. Ancel is of the opinion that penal policy can be examined in two aspects: in the aspect of science which studies the anti-crime reaction of society, and in

~^^1^^ A. Feuerbach, Lehrbach des gemeinen in Deutschland gultigen peinlichen Rechts, Giessen, 1840, p. 21.

~^^2^^ F. Liszt, E. Schmitt, Lehrbuch des deutschen Strafrechts, Berlin, 1927, p. 2.

~^^3^^ W. Sauer, Kriminologie, Berlin, 1950, p. 357.

the aspect of the art or organization of crime control based on scientific observation. According to M, Ancel the aim of penal policy is to prevent crime and influence offenders.^l

Given these approaches, penal policy is treated as a subjective factor, the product of the human intellect, and is reduced to a practical means of crime prevention.

Any state pursues a single policy, which is adopted for each individual sphere of social life. When we use the terms "economic policy", " agrarian policy", "price policy", we have in mind the manifestation of a general policy by the given state in a certain direction or in a certain field. There is an independent meaning attached to civic relations within society, which develop on the basis of the existing rules of personal behaviour and ethics.

In this sphere, too, the state pursues a definite political line, which may be described as " social policy". In practical terms, a social policy embraces the entire complex of social relations which deals with the country's social structure and relations between members of society. The social policy provides the guidelines for the education of people, outlines the rules for the correct behaviour of citizens, and shows how to prevent deviant behaviour.

In a socialist society, the cultivation of the socially useful activity of members of this society and control of any violations of the social relations, ethical and community rules estab-

~^^1^^ "La contribution de la recherche a la definition d'une politique climinelle" par Mark Ancel. Revue informationale de criminologle et de Police technique, LXXVIII, No. 3, 1975, pp. 226-27,

lished by law, i.e. the prevention of deviant and delinquent behaviour, are the subject of social policy, of which penal policy is a part.

Thus penal policy means the policy pursued by the state in crime control. This is, understandably, a very broad concept serving as the basis for special spheres of policy related to court procedures or the practices of penitentiary establishments. On this plane we speak of " forensic policy" and "penitentiary policy", the latter being known in the Soviet Union by the specific name of corrective-labour policy. Now that corrective-labour policy is applied to all administration of punishment it has evolved into a penalty imposing policy.

In the Soviet Union the emphasis in crime control is on the prevention of offences, their social prophylaxis. Public organizations play first fiddle in this, working in close co-operation with law and order agencies.

The policy of a state inevitably influences law. Legal regulations consolidate this state policy and make it compulsory.

The penal policy outlines the fundamental principles in the criminal law and constitutes the basis for the corrective-labour (i.e. penalty imposing) policy. This specific branch of policy is expressed in corrective-labour (penalty imposing) legislation.

The essence and application of penal and corrective-labour legislation are outlined by the fundamentals of the penal policy first and foremost, and also by the corrective-labour policy.

The penal law outlines a set of penal and legal measures within the framework of which

criminal responsibility is realized. These measures incorporate punishment among other things. However, the penal law provides for a possible replacement of punishment by measures of social influence, education and administrative responsibility, and at the same time outlines in part the procedure for their execution.

The penal policy of the Soviet state thus provides for a whole system of corrective measures applied to offenders: social influence and education, administrative responsibility as a substitute for criminal responsibility, punishment, and other penal law measures.

The penal policy is a guide for state agencies, public organizations, and individuals in controlling crime. Crime, however, does not embrace the entire range of disorderly conduct (e.g. such negative social phenomena as prostitution, vagrancy, begging, parasitism which are conducive to crime) and all forms of deviant behaviour in general.

The theoretical substantiation of crime prevention at various levels, undertaken by Soviet criminology, serves as a link between the social policy, which provides the guidelines in accordance with which deviant behaviour is prevented, and the penal policy. This substantiation is based on a realistic assessment of the crime rate, resulting from a whole series of circumstances, social phenomena first and foremost, that are interrelated with bio-psychological factors and depend not only on crime-inducing but also on crime-suppressing factors. This theoretical substantiation provides for crime prevention at 3 levels:

---the social level, which includes measures

taken for other purposes but objectively facilitating the elimination of conditions which give rise to crime;

---the special criminological level, at which the direct causes of various categories of crime are eliminated;

---the level of individual influence on people committing crime and other offences, and leading a deviant way of life that may be conducive to crime.

2. Social Prophylaxis---

the Priority

in Crime Prevention

Crime prevention at the 3 levels implies the utilization of all the above-mentioned measures of the penal policy, which are of a crime-- suppressing nature and promote crime prevention. However, among these measures we can single out special preventive measures which fall within the concept of social prophylaxis.

Preventive activities in a socialist state are a reflection of the humane approach to crime control. Charles Montesquieu wrote about prevention of crime as a function of legislators in his book L'Esprit des Lois. In the beginning of the forties of the last century, Karl Marx wrote an article "Debates on the Law on Thefts of Wood" in which he pointed out: "The wise legislator will prevent crime in order not to have to punish it.''~^^1^^

~^^1^^ K. Marx, F. Engels, Collected Works, Vol. 1, Progress Publishers, Moscow, 1975, p. 235.

'The essence of social prophylaxis in the USSR lies in the fact that crime prevention is a concern of the whole of society. The effort in this field is directed by bodies of state power and management and involves broad participation of public organizations, worker communities and individuals.

The realization of social prophylaxis is a political demand of the state laid down as law in the USSR Constitution. Article 65 reads: "A citizen of the USSR is obliged to respect the rights and lawful interests of other persons, to be uncompromising toward anti-social behaviour, and to help maintain public order.''

The participation of society and all its members in state affairs is an indication of genuine democracy of the Soviet system. The people take an active part in the solution of tasks together with the state. Such a genuinely broad and all-round fulfilment of public functions by society itself testifies to the unity of interests of the state and the people. Besides, the measures taken by society show the real attitude of citizens towards offences committed and, hence, have greater impact on the offenders. One must also bear in mind the fact that the participation of public organizations and individuals in crime prevention and education of offenders is in itself an important means of raising the level of social consciousness.

This is the reason why special public organizations are set up under state bodies to perform the functions of crime prevention and education of offenders. Among these are supervisory commissions comprising deputies of Soviets and representatives of public organizations and work-

fer communities, which operate under the executive committees of district, city (in exceptional cases township), regional and territorial Soviets of People's Deputies and the Councils of Ministers of autonomous republics. These commissions look after the conduct of people who have been penalized but not imprisoned and those just discharged and also supervise the functioning of penal establishments.

The executive committees of local Soviets and the Councils of Ministers of autonomous republics set up special commissions for juvenile affairs which are entrusted with the task of looking after the conduct of children under age, particularly their deviant behaviour. These commissions also supervise convicted juveniles and those exempt from punishment, and the operation of educational-labour colonies, where convicted juveniles serve their sentences.

The supervisory and juvenile affairs commissions are the subject of detailed description in par. 11 of Chapter 2.

Public involvement is facilitated by voluntary law and order squads (dobrovolnaya narodnaya druzhina---DND for short), which are organized by the personnel of industrial enterprises, offices and other establishments as well as on a residential basis. The DND operate under the auspices of the district, city, township and village Soviets and their executive committees. They help to maintain public order, to control hooliganism, drunkenness and embezzlement of state, public and private property, to educate offenders, to control child neglect and juvenile delinquency. They participate in traffic control activities, render assistance to accident victims, help

to save lives and property during natural calamities and other emergencies.

In order to perform their duties the DND members have the right to enforce public order. In the case of offenders, the squad members have the right to demand presentation of identification papers or a driver's license, to take offendders to the militia or squad headquarters. In emergency cases the DND have the right to use any transport to take to hospital a person in need of medical assistance. When on duty, the members of the squads have free passage in public transport and also the free use of all telephone facilities at enterprises and offices.

Resistance to squad members discharging their duties, encroachment on their life, health and dignity entail greater criminal responsibility as an aggravating circumstance. All the activities of the DND are based on strict adherence to socialist law and are supervised by the procurator's office.

Comrades' courts play an important role in the education of citizens and crime prevention. They are set up in accordance with the Statute of Comrades' Courts and the Statute of Public Councils for the Promotion of Comrades' Courts. '

The comrades' courts are elective public bodies called upon to promote the education of citizens in the spirit of communist attitude to work, solicitude for socialist property and adherence to socialist community rules, the development of collectivism among the citizens, com-

radely mutual assistance and respect for the honour and dignity of Soviet people.

The comrades' courts are set up at industrial enterprises, offices and other establishments, at institutions of higher learning and vocational colleges on the basis of a resolution adopted by the general meeting of the factory or office workers or students. These courts are also set up on collective farms and in residential blocks. In the Russian Federation alone there are over 140,000 comrades' courts functioning at various enterprises and establishments.

Members of the comrades' courts are people with good business and moral qualities elected for a two-year term.

These courts examine cases of poor discipline at work, careless work, violation of labour and fire protection rules, loss or damage of equipment, implements, tools, unwarranted use of state or public owned items for personal benefit, petty hooliganism, insults, slander, damage to greenery, etc.

The activities of the comrades' courts are promoted by special public councils which are set up under the executive committees of district and city Soviets for a term of two years. These public councils help to conduct elections of comrades' courts and to organize their work, conduct seminars and conferences with the members of the comrades' courts to pool experience, and supervise their activities. The public councils for the promotion of comrades' courts function with the broad participation of the public at large.

The basic functions in protecting public law and order and controlling crime are performed by the Soviet police. The range of its activities

~^^1^^ Records of the USSR Supreme Soviet, 1977, No. 12, p. 254 (Here and further on in Russian).

2-01471

is outlined in the Decree of the Presidium of the USSR Supreme Soviet of 8 June 1973 "On the Basic Duties and Rights of the Soviet Police in Protecting Public Law and Order and Controlling Crime".ⁱ

The priority tasks of the police are prevention and frustration of crimes and other anti-- social acts, the rapid and complete exposure of crimes, and helping in every way eliminate the causes leading to crime and other violations of law.

-Police detachments are an integral part of the internal affairs agencies of the state which are subordinated both to the corresponding executive committees of Soviets of People's Deputies and the superior internal affairs departments.

The police is vested with the responsibility of ensuring protection of law and order in the cities and other residential centres, protecting socialist property, the rights and legitimate interests of the citizens, state bodies and public organizations.

Apart from functions arising from the fulfilment of these tasks and duties, the police cooperates with other state agencies and public organizations in preventing child neglect and controlling juvenile delinquency.

The activities of the police are based on strict adherence to Soviet laws, and the procurator's office supervises implementation of this principle.

Social prophylaxis is conducted by public organizations and state agencies and there are va-

rious forms of it. Two of its basic forms---at places of employment and at places of residence---have been particularly well developed.

The party organizations and administration of industrial enterprises, construction units, and offices set up social prophylaxis councils which mobilize the personnel and the public organizations against infringement of the law.

On a residential basis work on social prophylaxis is conducted by public law enforcement centres which are set up in each urban microdistrict or on the territory subordinated to a rural Soviet. These law enforcement centres are run by public councils and comprise a comrades' court, a DND squad, and a juvenile activities inspector who operate on a public service basis. The only paid official at these centres is a district police inspector who registers potential offenders, supervises the activities of persons subjected to administrative supervision, drink addicts, and persons without employment for long periods. In his work the district inspector is backed by the public through the comrades' court and a DND squad.

The social prophylaxis councils at places of employment and the public councils at the law enforcement centres operate under the auspices of the local government bodies and administration. The administration of enterprises and establishments and the local population take an active part in their work.

In the sphere of social prophylaxis, priority importance is attached to prevention of crime and other offences by young people, particularly those under age. On 15 February 1977, the Presidium of the USSR Supreme Soviet issued

~^^1^^ Records of the USSR Supreme Soviet, 1973, No. 24, p. 309. •>

2*

the decree "On the Basic Duties and flights of Inspections for Juvenile Affairs, Children Reception Centres, and Special Educational Establishments for the Prevention of Child Neglect and Juvenile Delinquency"* with the purpose of introducing measures affecting various categories of juveniles whose behaviour gives ground for concern.

Under this decree there have been set up inspections for juvenile affairs, children reception centres, and special educational establishments for juvenile offenders---special general education schools and special vocational schools. The decree also outlines the duties of the local Soviets of People's Deputies, their executive committees and commissions for juvenile affairs in exercising state control over the activities of the newly set up establishments and rendering them assistance.

Inspections /or juvenile affairs, working under the internal affairs agencies, deal with a wide range of problems. Their main objective is to prevent offences by juveniles who have already committed crimes and have been either discharged from prison, or put on probation, or sentenced to punishment without detention, and also those who committed crimes but had their criminal charges dismissed because of the application of public disciplinary actions or as a result of amnesty.

The inspections are called upon to prevent fresh offences by juveniles who have not yet reached the age of criminal responsibility but

have already committed socially-dangerous acts, those returning home from special educational establishments, and teenagers who have committed offences that entail administrative or public reprimand. Particular attention is devoted to teenagers taking strong drinks, those who refuse to work or study, and also youngsters under 16 running away from home or from special educational establishments, engaging in systematic gambling and leading an anti-social way of life.

The inspections, in addition, take part in general educational work with young people under age, make provisions to control offences and other anti-social acts by youngsters, register parents or tutors who fail to perform their duties with regard to their children or whose anti-social behaviour is conducive to juvenile delinquency. They place abandoned, parentless or lost children in establishments run by the medical services or educational agencies or into children reception centres. The inspections inform the local bodies of power, public organizations and the administration of educational establishments, industrial enterprises and offices about juvenile offenders and the unworthy behaviour of their parents, submit proposals to state agencies or public organizations concerning improvement of educational work, realization of cultural programmes, etc.

The inspection personnel have the right to detain juvenile offenders at internal affairs agencies for a maximum period of three hours, to search them and to draw up an examination record.

The children reception centres are intended

~^^1^^ Records of the USSR Supreme Soviet, 1977, No. 8, p. 138.

for the temporary maintenance of neglected children (orphaned, lost or run-away) between the age of 3 and 18, who are in need of assistance from the state and society. Children and teenagers under 16 are admitted to these reception centres if they have run away from home. Teenagers between 16 and 18 are admitted if they have run away from home, their identity is not established and they are in need of tutorship and assistance. Children between the age of 11 and 14, committing socially-dangerous offences, are immediately isolated in children reception centres. Teenagers under 18 may be kept at the reception centres for not more than 30 days. In exceptional cases, this period may be extended for another 15 days by a special decision of the juvenile affairs commission under the local Soviet.

The special educational establishments ( special general education schools, special vocational schools) combine education, vocational guidance and training with correction and re-- education of juvenile offenders. They cultivate in the inmates moral qualities in accordance with the spirit of communist morale and ensure their physical, labour, esthetic and legal education.

Young offenders between the age of 11 and 14 are sent to special general education school by decision of the local juvenile affairs commission. A decision of the commission or a court ruling is required to send offenders between the age of 14 and 18 to a special vocational school.

Young offenders are kept at the special general education schools till they reach the age of 15, and at the special vocational schools till the age of 18. In exceptional cases, a teenager

may remain at the special general education school till the age of 16. The period in a special educational establishment ends when the juvenile offender reforms, but does not exceed 3 years. The juvenile affairs commission may allow the teenager to stay at the special educational establishment beyond the 3-year limit till the end of the current academic term.

Inmates of special general education schools, who have reached the age of 15 and not reformed, may be transferred to special vocational schools by decision of the juvenile affairs commission.

Those discharged from the special general education schools, are sent back to their parents or tutors. If there is no person to look after the children, they are taken to conventional educational establishments.

The graduates of special vocational school are, as a rule, sent back home and given employment in the acquired speciality. The administration of the special educational establishments give at least a month's notice to the parents or tutors and the juvenile affairs commissions about the forthcoming discharge of the person.

Tuition at the special general education and vocational schools is based on curricula used by conventional schools.

The special educational establishments operate under specific conditions, which include increased responsibility of the inmates for their actions, permanent observation and control of the inmates by the teachers, confinement to the territory of the school, with special permission of the administration required to leave the school

grounds. There is a rigid daily schedule providing special hours for education, productive labour, and organized recreation.

The administration of the special educational establishments maintain contact with the parents of the inmates and hold parent meetings and talks. The inmates are allowed correspondence, receive food and book parcels and money. But they can spend their money only with the permission and under the control of the school administration. When there is well-founded suspicion that the inmates possess unauthorized articles, it is allowed to subject them to body search, examination of personal effects and also incoming parcels and money orders, to search dormitories and other premises. Examination records are then drawn up.

On 11 March 1977 the Presidium of the Supreme Soviet of the Russian Federation issued a Decree "On Amendments and Supplements to the Statute of Juvenile Affairs Commissions"ⁱ which further improved the system of juvenile delinquency prevention (see par. 11, Chapter 2).

The commissions are entrusted with the task of co-ordinating the activities of educational, medical, social security and cultural agencies, administrations of enterprises and establishments, and public organizations in their work with teenagers, in educating them and preventing child neglect and offences. They also supervise the maintenance of teenagers in boarding schools, orphanages, and special educational establishments.

The broadening of the range of social prophylaxis measures with regard to juvenile delinquents further narrows the sphere of criminal responsibility. Nevertheless, a person under age may be prosecuted, although in applying penal law measures the emphasis is on prevention. For instance, offenders under the age of 18 may be discharged conditionally before the sentence expires. Reduced periods of sentences have been established to be served by convicted juveniles in order to qualify for conditional discharge. Not only exemplary behaviour and conscientious attitude to work, but also the attitude to studies are among the reform criteria for a convicted teenager.

The Presidium of the USSR Supreme Soviet, by its Decree of 15 February 1977 "On Supplementing the Fundamentals of Criminal Law of the USSR and the Union Republics with Article 39^J", introduced a special form of criminal responsibility---suspended sentencing. '

In the case of a juvenile offender sentenced for the first time and to up to three years, execution of the sentence may be deferred if there is an opportunity to correct the convicted person without isolating him from society, provided rigid control is established over his behaviour. The period of deferment, from 6 months to 2 years, does not depend on the time before the convicted person comes of age. The court ruling on the suspended sentence may also include a decision on the civil action concerning damages or reimbursement of expenses entailed in medical treatment of the plaintiff,

' Records of the USSR Supreme Soviet, 1977, No. 8, p. 137.

~^^1^^ Records of the Supreme Soviet of the Russian Federation, 1977, No. 12, p. 259,

which is executed when the sentence comes into eSect.

Article 39 ^l of the Fundamentals of Criminal Law of the USSR and the Union Republics gives the courts powers, in passing a suspended sentence, to commit the convicted person to starting employment or studies within a set period of time and to making up for the damage entailed in the crime. Legislation of the Union republics also provides for other acts of the convicted persons conducive to their correction and re-education. For instance, according to the penal codes of the Ukrainian and Turkmen republics, the court may rule that the juvenile offender apologize to the plaintiff publicly or in some other form.

During the period of deferment of punishment, the convicted person is under the supervision of the juvenile affairs commission and internal affairs agencies.

If the convicted person displays exemplary behaviour and conscientious attitude to work and studies during the period of deferment of punishment and thus proves that he has reformed, he may be exempted from punishment by a court ruling on the recommendation of supervisory bodies.

The introduction of the system of suspended sentences for juvenile delinquents accentuated the preventive trend in the Soviet legislation dealing with responsibility for offences, and boosted the importance of social prophylaxis as a whole.

3. Criminal Law Means for Preventing Crime

The principles of Soviet criminal and corrective-labour policy are outlined in criminal and corrective-labour legislation.

Under the USSR Constitution, the Fundamentals of Legislation of the USSR and that of each Union republic serve as the basic legislative act for all aspects of law throughout the entire territory of the Soviet Union. In accordance with the Fundamentals of Legislation, each Union republic adopts laws which are classified as codes.

The Fundamentals of Criminal Law of the USSR and the Union Republics were adopted by the USSR Supreme Soviet on 25 December 1958. * The Fundamentals of Corrective-Labour Law of the USSR and the Union Republics were adopted by the USSR Supreme Soviet on 11 July 1969.^^2^^ Along with the latter, there is also a special law on the execution of detention---the Statute of Pre-Trial Detention.^^3^^

The decrees and resolutions adopted by the Presidium of the USSR Supreme Soviet in February 1977 contributed to the further development of social prophylaxis of offences, improved the system of re-education of offenders and introduced basically new approaches to the problem of responsibility for offences. These documents were "On Amendments and Supplements to the Criminal Law of the USSR", "On the Application of Administrative Punishment

~^^1^^ Records of the USSR Supreme Soviet, 1959, No. 1, p. 6.

~^^2^^ Ibid., 1969, No. 29, p. 47.

~^^3^^ Ibid., p. 249.

to Persons Exempted from Criminal Responsibility Under Article 43 of the Fundamentals of Criminal Law of the USSR and the Union Republics", "On Amendments and Supplements to the Fundamentals of Corrective-Labour Law of the USSR and the Union Republics",' "On the Application of Decrees Amending and Supplementing Criminal and Criminal-Procedure Legislation", the aforementioned resolution "On Further Improving the Activities of Comrades' Courts", and also the acts of the Presidium of the USSR Supreme Soviet dealing with the further differentiation of ways and means of preventing juvenile delinquency---the decree "On Supplementing the Fundamentals of Criminal Law of the USSR and the Union Republics with Article 39 *", and the decree "On the Basic Duties and Rights of Inspections for Juvenile Affairs, Children Reception Centres, and Special Educational Establishments for the Prevention of Child Neglect and Juvenile Delinquency".^^2^^

All these decrees and resolutions express the general policy of the Soviet Union in further consolidating law and order, protecting the interests of society, preventing offences, crime first and foremost, and guaranteeing the legitimate interests of citizens.

Legislation, however, envisages more stringent responsibility of persons committing grave crimes, recidivist criminals deliberately inflicting damage to society and citizens, than first offenders who did not bring harm to society deliberately and were in a situation which hamper-

~^^1^^ Records of the USSR Supreme Soviet, 1977, No. 7, p. 118.

~^^2^^ Ibid., 1977, No. 8, pp. 137, 138,

ect the adoption of correct solutions.

The humaneness of our laws is seen from the fact that they give priority to social prophylaxis measures, which have been examined in the preceding paragraph.

A juridical assessment of laws in the Soviel Union leads us to the conclusion that practical opportunities have been opened for a further substantial differentiation in the types and methods of criminal responsibility. This, in its turn, means that there are more ways and means of influencing offenders, and re-educating them with due account of the nature and gravity of their offences and the degree of social neglect of the offender.

In discussing the subject of bringing influence on offenders, it is customary for most people to visualize what they think is the most natural, just and effective chain of social events: crime---criminal responsibility---punishment. This chain does exist, inasmush as there are grave crimes, recidivists with regard to whom any other reaction of society to the evil committed would be too soft and contradicting the spirit of justice.

However, not all offenders deserve the same kind of reaction on the part of society. This necessitates not only differentiation in criminal responsibility, but also exemption from criminal responsibility and its substitution by administrative reprimand or measures of social influence and education.

Article 43 of the Fundamentals of Criminal Law prior to 1977 envisaged exemption from criminal responsibility and punishment, provided that at the time of investigation or court proceedings, the offence or the offender were no

longer socially dangerous. A person was considered to be socially harmless as a result of exemplary conduct and conscientious attitude to work.

On 8 February 1977 the Presidium of the USSR Supreme Soviet adopted the decree "On Amending and Supplementing the Criminal Law of the USSR" by which two clauses were added to Article 43:

``A person committing a crime that does not constitute a great social danger may be exempted from criminal responsibility if it is recognized that the person's correction and re-education can be achieved without the application of criminal punishment. In this case, in accordance with the laws of the USSR and the Union republics, the court has an option---a) to institute administrative proceedings against the person; b) to refer the case to a comrades' court; c) to refer the case to a juvenile affairs commission; d) to place the person in the charge of a public organization or the personnel of an en* terprise.

``Exemption from criminal responsibility and institution of administrative proceedings is applied only with regard to crimes for which the law envisages a detention of not more than one year or any other milder punishment.''

On 8 February 1977 the Presidium of the USSR Supreme Soviet adopted another decree, "On Amendments and Supplements to the Fundamentals of Criminal Proceedings of the USSR and the Union Republics" * introducing Article 5^^1^^ into the Fundamentals:

' Records of the USSR Supreme Soviet, 1977, No. 7, p. 120.

``Criminal proceedings may be discontinued in the cases and in the order envisaged by the legislation of the USSR and the Union republics: a) with administrative proceedings instituted against the person concerned; b) with the case referred to a comrades' court; c) with the case referred to a juvenile affairs commission; d) with the person placed in the charge of a public organization or the personnel of an enterprise.''

Therefore, if the crime constitutes but an insignificant social danger, the offender is exempted from criminal responsibility, criminal proceedings are discontinued, administrative proceedings are instituted instead and the person is exposed to public reprimand and educational measures.

The decree of the Presidium of the USSR Supreme Soviet "On the Application of Administrative Punishment to Persons Exempted from Criminal Responsibility in Accordance with Article 43 of the Fundamentals of Criminal Law of the USSR and the Union Republics" (8 Feb. 1977) ' introduced a special procedure for the substitution of criminal responsibility by administrative punishment whereby the judge is obliged to examine the materials on administrative prosecution substituting criminal proceedings within 10 days of their arrival at the court.

A ruling to drop criminal proceedings and institute administrative proceedings instead may also be passed by the public procurator, as well as by the investigator or the agency conducting the inquiry with the permission of the procura-

~^^1^^ Ibid., p. 117.

tor. In these instances, a ruling is passed only after all the aspects of the case have boon fully and objectively studied and the offender charged. Special attention is devoted to the personality of the offender, since it is to be established whether correction is possible without the execution of punishment.

Criminal proceedings may be dropped and administrative proceedings instituted instead even in those cases when the offender had earlier faced similar administrative charges in accordance with criminal law (e.g. illegal trade---- Article 162 of the Criminal Code of the Russian Federation, illegal hunting---Article 166 of the Criminal Code of the Russian Federation, violation of passport regulations---Article 198 of the Criminal Code of the Russian Federation, etc.), because Article 43 of the Fundamentals of Criminal Law is applicable to all criminal cases in which the sentence is one year's detention at the most or some other milder punishment.

The differentiated approach to punishment of offenders is also possible within the framework of criminal responsibility. The Fundamentals of Criminal Law (Article 38) provide for suspended sentences, which means that the punishment in the form of imprisonment or corrective labour without detention is appointed but not executed. In its ruling the court sets a period of probation during which the convicted person must refrain from committing deliberate offences punishable by detention if he is to avoid the execution of the passed sentence.

Suspended sentences to imprisonment or corrective labour without actual detention is one of the ways of executing criminal responsibility

without actual application of punishment, and, by this virtue, is a special criminal law measure.

The concept of suspended sentences in Soviet criminal law and penal policy has taken the form of suspended sentence with compulsory employment. It has therefore developed into a special criminal law measure of influencing offenders. This principle considerably increases the potentials of criminal law control of crime and promotes further differentiation and individualization of responsibility.

The application of suspended sentences with compulsory employment of the convicted person is regulated by Article 23^^2^^ of the Fundamentals of Criminal Law. This envisages suspended sentences with compulsory employment for ablebodied first offenders convicted to up to 3 years' imprisonment for a deliberate offence, or sentenced to up to 5 years' imprisonment for accidental offence. A suspended sentence is passed on the basis of the nature and degree of social danger of the crime, the personality of the offender and other factors.

The Supreme Court of the Russian Federation, in its Resolution No. 5 of 13 December 1977 ^l recommended all courts to examine the possibility of applying suspended sentences with compulsory employment of the convicted person in all cases when the sentence does not exceed 3 years for a deliberate crime or 5 years for an accidental offence, since labour is an effective means of correction and re-education. The Supreme Court of the Russian Federation pointed out that a suspended sentence must be

~^^1^^ Bulletin of the Supreme Court of the Russian Federation. 1978, No. 3, pp. 5-S (in Russian).

3-01471

33

substantiated by the firm belief of the court concerned that the offender can be corrected and re-educated without isolation from society, but merely under supervision.

For the correct resolution of this problem it is essential to examine the age, the state of health and ability to work, the attitude to work, the behaviour in everyday life and other factors concerning the convicted person. Particular at tention should be devoted to the study of the personality of convicted persons recognized as alcohol or drug addicts, but not requiring com pulsory medical treatment or having already taken a compulsory treatment course at a medical-labour establishment.

In accordance with Article 23^^2^^ of the Fundamentals of Criminal Law (Article 24^^2^^ of the Criminal Code of the Russian Federation and the corresponding articles in criminal codes of other Union republics) suspended sentences with compulsory employment of convicted persons are not applicable in the following cases:

a) to persons convicted for especially dangerous state crimes, gangsterism, deliberate murder (with the exception of manslaughter beyond the limits of necessary self-defence or in a state of great agitation), deliberate serious injury (with the exception of serious injury inflicted in self-defence beyond the necessary limits or in a state of great agitation), rape committed by a group or entailing a specially heavy injury, rape of a minor, malicious hooliganism;

b) to persons who are not only convicted for crime but also committed to compulsory treatment as alcohol or drug addicts, and also to persons who have not completed a

VD treatment course;

c) to foreign citizens and stateless persons.

In a number of cases the law envisages differentiated responsibility depending on the social danger of the offence. For instance, acts of hooliganism, which are not socially dangerous, are treated as petty hooliganism, i.e. as an administrative offence.

Administrative responsibility for petty hooliganism was instituted by the Presidium of the Supreme Soviet of the Russian Federation in a decree of 19 December 1956. Similar decrees were adopted in all the Union republics. At present, responsibility for petty hooliganism is envisaged by USSR legislation. '

A person committing petty hooliganism may be sentenced under administrative proceedings to detention for up to 15 days, or corrective labour for a period of from one to two months with a deduction of 20 per cent from the wages, or a fine of 10 to 30 roubles.

More serious acts of hooliganism are treated as crime and punished in accordance with the criminal codes of the Union republics.

4. Punishment---

a Means of Correcting

and Re-educating

Offenders.

Types of Punishment

Punishment still remains one of the means

~^^1^^ Records of the USSR Supreme Soviet, 1966, No. 30, p. 595.

3*

of influence, applied to persons committing crime. The law outlines the basic features of punishment in Article 20 of the Fundamentals of Criminal Law of the USSR and the Union Republics, and in Articles 1 and 2 of the Fundamentals of Corrective-Labour Law of the USSR and the Union Republics.

Article 20 of the Fundamentals of Criminal Law formulates the essence and purpose of punishment the following way: "Punishment is not only a penalty for a crime committed, but also a means of correcting and re-educating convicted persons in a spirit of honest attitude to work, adherence to law, respect for rules of socialist community, a means of preventing further crimes both by the convicted person and others. Punishment is not aimed at inflicting physical suffering or humiliating human dignity.''

Article 1 of the Fundamentals of CorrectiveLabour Law outlines the same features of punishment, but in a different wording---they are formulated as tasks of corrective-labour law: "Corrective-labour law pursues the task of executing punishment not only as a penalty for a crime committed, but also as a means of correcting and re-educating convicted persons in a spirit of honest attitude to work, adherence to law, respect for rules of socialist community, a deterrent against fresh crimes by the convicted person and others, a means of eradicating crime. Execution of punishment is not aimed at inflicting physical suffering or humiliating human dignity.''

Hence, the law does not identify punishment with corrective-labour measures. In other words, the educational measures as such (labour,

general educational work and schooling) do not fall within the category of punishment. However, both punishment and corrective-labour measures are applied with the purpose of correcting and re-educating criminals. Both are a means of correcting and re-educating.

Article 7 of the Fundamentals of CorrectiveLabour Law says: "The basic means for correcting and re-educating convicted persons are: the conditions of serving sentence, socially-- useful labour, political and educational work, general education and vocational training.''

The law details and clarifies the essence of punishment and corrective-labour measures. Punishment as such is realized in the conditions prevailing at the corrective-labour establishments. In Soviet law and practice the word "regime" is used to denote the conditions at corrective-labour establishments (see par. 5, Chapter 2).

Thus, labour, educational work, general schooling and vocational training, coupled with the regime, make up the basic means which lead to correction and re-education of convicted persons.

The essence of punishment in the law is explained by the word ``penalty''. By virtue of this, ``penalty'' has acquired specific meaning which requires explanation. Penalty, as a characteristic of punishment, may be viewed in several aspects.

From the point of view of state policy, penalty is a compulsion measure appointed by a court on behalf of the state and applied only to a person found guilty of committing a crime, so that society may protect itself. For all this, society does not exclude the criminal from its ranks,

and is prepared to deal with the person's education, and later to return that person to society, provided that the person is capable of useful activity and will refrain from violating rules of community.

From the juridical point oj view, penalty constitutes a series of limitations of rights provided by law, imposed by a court ruling, and expressed in practical terms depending on the type of punishment. These limitations of rights take the form of restrictions on certain rights, reduction in the scope of other rights, imposing a special system of execution of rights and instituting special obligations. Limitations of rights express the essence of punishment. They are instituted by the law and the court applies punishment only in accordance with the law. The administration and other personnel of agencies responsible for the execution of punishment are strictly forbidden to deviate from the law and attempt to aggravate or alleviate the lot of the convicted person. Punishment is as severe as envisaged by law, and this approach to severity of punishment is in the interests of maintaining law and order and controlling crime.

In terms of psychology, penalty affects the internal mechanism of perception. Punishment, which is meted out as penalty, objectively arouses the emotional feelings and even causes suffering, mainly moral suffering, of the convicted person. The convicted person cannot avoid these emotional feelings and suffering precisely due to the fact that the rights of the person are limited and this is expressed in actual privations. It goes without saying that within the framework of limitations of rights, which is the es-

sence of punishment, no convicted person remains indifferent to restrictions and privations imposed, and these arouse suffering or at least an unpleasant feeling.

It must be pointed out, however, that Article 8 of the Fundamentals of Corrective-Labour Law guarantees human rights of convicted persons and outlines the legal status of persons serving prison sentences, those in exile, and those who are employed in corrective labour without detention.

The essence of punishment (penalty) may be described qualitatively and quantitatively.

The qualitative index characterizes the specific features of a given type of punishment: imprisonment---a series of limitations of rights expressed in isolation within a corrective-labour establishment; banishment---a series of limitations of rights expressed in isolation through compulsory residence in a given site; expulsion---a prohibition to have residence in listed areas; corrective labour---certain limitations in the sphere of labour relations (deductions from wages, no leaves, etc.).

The quantitative index describes the dimensions of the penalty corresponding to the given type of punishment. For instance, limitations of rights entailed in detention in a corrective-- labour colony of strict regime for a period of 10 years, as stipulated by the sentence; limitations of rights entailed in corrective labour during the period of 1 year stipulated by the court sentence with a deduction of 15 per cent of the wages, etc.

Since punishment is recognized as penalty, there arises the question: is it not a synonym

for revenge? The question arises due to the fact that punishment (penalty) is imposed for a crime Committed.

Under Soviet law (Article 32 of the Fundamentals of Criminal Law) in meting out punishment the court reckons not only with the social danger of the crime, but also with the personality of the criminal. Under Article 37 of the Fundamentals, the court, taking into consideration exceptional factors in the case and the personality of the defendant, may recognize the necessity of meting out punishment below the minimum required, and commute the sentence, indicating in every case the motivation for the commutation. Therefore, it would be more correct to say that punishment contains an element of revenge but is not identical with the latter.

For a description of punishment, there must be a clear understanding of its goals. Article 20 of the Fundamentals of Criminal Law and Article 1 of the Fundamentals of Corrective-Labour Law define the purpose of punishment as follows:

a) correction and re-education of convicted persons;

b) prevention of fresh crimes by convicted persons (the purpose of particular or special prevention);

c) prevention of crimes by other persons (the purpose of general prevention).

Each one of these goals is independent in na ture, but they are all closely correlated.

Before examining the first goal, it is necessary to clarify the concepts of ``correction'' and ``re-education''. The expression "correction and

re-education", which is frequently used in legislation and juridical publications, has two meanings:

a) it is the result of a certain system of measures which are applied to a person committing crime (in accordance with Article 20 of the Fundamentals of Criminal Law of the USSR and the Union Republics, Article 3 of the Fundamentals of Court Proceedings of the USSR, the Union and Autonomous Republics, and Articles 1 and 7 of the Fundamentals of Corrective-Labour Law of the USSR and the Union Republics);

b) it is a specific educational process conducted in the course of execution of punishment and application of corrective-labour measures.

In any case, the terms ``correction'' and `` reeducation'' must have a clearly defined meaning.

In accordance with Article 1 of the Fundamentals of Corrective-Labour Law, correction and re-education means a result achieved, which is individual for each convicted person but is basically the same in terms of overall achievement: the person who has served a sentence no longer constitutes a danger to society, as a minimum; besides, that person is capable of being only useful to society. This result is expected both with regard to those who, prior to conviction for crime, led a reprehensible way of life, contributing little or nothing for the benefit of society, and those who, prior to committing crime, were engaged in socially useful work, but whose crime caused harm to society. This means that the impact on convicted persons begins at different levels, as it were. This also means that the result achieved will be re-education

in one case, and correction in another. However, the interests of society demand that the level of the result achieved should be the same.

It is in the interests of society that correction and re-education bring former criminals to acquire new socially useful concepts, habits and trades, or to remedy some of their erroneous concepts and anti-social views. It is not in the interests of society for a former criminal, who has been subjected to correction and re-- education, to stop committing crimes merely from fear of punishment. Correction and re-education are only then achieved, when that person becomes a conscientious and useful member of society, with an honest attitude to work, respecting laws and rules of socialist community, capable of performing civic duties. Such is the first meaning of the terms ``correction'' and `` reeducation''.

The second meaning of these terms is when ``correction'' and ``re-education'' stand for the very process of educating criminals. The question is then---are ``correction'' and "re-- education" identical in meaning? In general usage, the meaning of these two words is not identical. ``Correction'' means improvement, change for the better, while ``re-education'' means to educate a person anew. Apparently, it is not accidental that the corrective-labour law describes the process of influencing convicted persons not with the word ``correction'' or ``re-education'', but by both simultaneously.

To correct a criminal, means to help the person to get rid of anti-social views, habits and concepts. To re-educate a person, means to develop new views and concepts, new habits, civ-

ic self-consciousness, which all constitute the human personality.

Thus, correction and re-education are different concepts, although in both cases we deal with education. Corrective-labour establishments take this factor into consideration when they deal with different people---some have to be corrected, others re-educated. Take, for instance, a driver who was a good worker but has been sentenced for careless driving. In his case no re-education is required, only correction, to make him more exacting in performing his work. On the other hand, fences, thieves, robbers, who constantly break the law, evade employment, lead a parasitical way of life, and openly encroach on social interests---these have to be re-educated.

In the light of the activities of corrective-- labour establishments, correction and re-- education of convicted persons are two aspects of a single educational process. To say that one corrective-labour establishment implements correction while another implements re-education, because of the type of contingent, would be a wrong assumption. In general, it is hardly possible to determine once and for all which category of convicted persons requires correction and which---re-education. Any attempt of this kind would be harmful. The problem of what is required---correction or re-education, has to be solved in practical terms, in the process of studying the personality of the convicted person and in individual contacts with that person.

The corrective-labour establishments resort to individual methods of correction and re-- education of convicted persons. In the case of one con-

victed person, the measures selected on an individual basis are applied to achieve re-- education, while in the case of another a different set of measures, also selected on an individual basis, is used to ensure correction.

The second purpose of punishment---special (particular) prevention, constitutes such influence on the criminal that would hold him from further crimes.

The third purpose of punishment---general prevention, constitutes punishment of the convicted person that would stop others, not subjected to punishment, from committing crime. The fact that the criminal has been punished, subjected to just and, at times, severe condemnation, serves as an object lesson to potential criminals. The inevitability of punishment is a powerful deterrent for such people.

Along with this, the just solution of criminal cases boosts the authoriy of justice. A sentence that corresponds to the gravity of the crime and takes into account the circumstances and the personality of the criminal, instills in other citizens firm belief that the court, the procurator's office, the police, and the security services of the Soviet Union guard their interests.

The just and exhaustive solution of all criminal cases by the Soviet court, and the corresponding execution of punishment by correctivelabour establishments, enable citizens to understand the underlying roots and conditions conducive to crime, to recognize its social danger and to render active support to the state in controlling crime.

As a rule, the aims of punishment are achieved in each practical case of its application. How-

ever, there may arise situations, when it is not necessary to achieve all the aims of punishment. For instance, a person has committed a crime in a fit of passion or in self-defence, for which no correction or re-education is required. However, the crime cannot be left without punishment, which, in this case, pursues the pur pose of general prevention. Besides, the person convicted of such a crime to corrective-labour punishment does not lose socially-useful habits and is not subjected to moral degradation.

Perhaps, it is only in the case of capital punishment---execution by a firing squad, that correction and re-education of the criminal are out of question. This, however, is not only the highest, but also an exceptional penalty, one which is temporary and whose application is strictly limited by law.

And so, punishment is a measure of compulsion appointed by the court on behalf of the state and applied to offenders. It takes the form of penalty (the sum total of limitations of rights as established by law in accordance with the type of punishment), which pursues the goals of correction and re-education of convicted persons, prevention of fresh crimes both by the convicted person and other persons, and eradication of crime.

Punishment is always specific because it is applied as a fixed measure of compulsion, selected by court with regard to the person committing crime. This is because there is individual responsibility and individual punishment of the criminal. An essential prerequisite for individual punishment is the possibility to appoint different punishment to different people. The

appointment of one and the same punishment (for instance imprisonment) but in different quantities (different terms) for different crimes is in full accordance with the demand for individualization of punishment. However, individualization cannot be allowed to boil down to merely the quantitative element. For punishment to achieve its purposes, it is essential to put into effect its qualitative aspect. It goes without saying that detention and a fine, irrespective of their dimensions, have different impact on the convicted person.

The law outlines the content of various types of punishment which make up a fixed system, as provided for by Article 21 of the Fundamentals of Criminal Law. According to this provision there are basic and additional punishments. The basic punishments embrace imprisonment, exile, banishment, corrective labour without detention, a ban on holding certain posts or engaging in certain occupation, fine, public reprimand.

Expulsion, banishment, ban from holding certain posts or engaging in certain occupation, and fine, although listed among the basic punishments, may be imposed as additional to some other basic punishment.

Under banishment, the convicted person is banned from his place of residence and is obliged to live in the area prescribed. In the case of expulsion the convicted person is expelled from his place of residence and is forbidden to reside in certain areas. That is, as contrast to banishment, he still has a choice of residence. The purpose of banishment and expulsion is to break the ties of the convicted person with the

environment that created the conditions for him to commit a crime or induced him to do so.

The ban from holding certain posts or engaging in certain occupations applies to convicted persons in those occupations that require a certain necessary measure of public trust. This refers to drivers blatantly breaking traffic rules, causing grave consequences; to physicians committing a criminal offence within their profession; to people employed in trade and other jobs associated with financial responsibility, who have broken the law in discharging that responsibility (embezzlement of public funds, theft, profiteering, cheating the customer).

The law also envisages two other types of punishment---confiscation of property and removal of military or special rank, which are applied only as additional punishment. There is also a special type of punishment applied to military personnel on active service---assignment to disciplinary battalion. According to section 2 of Article 29 of the Fundamentals of Criminal Law, in the case of servicemen, corrective labour is substituted by detention at the guardhouse for up to 2 months.

The Fundamentals of Corrective-Labour Law recognize the right of the Union republics to institute types of punishment other than listed in Article 21 of the Fundamentals. For instance, according to the Criminal Code of the Russian Federation, the Byelorussian, Uzbek, Kazakh, Georgian, Azerbaijan, Lithuanian, Moldavian, Latvian, Kirghiz, Tajik, Armenian and Turkmen republics, dismissal from a post is one form of punishment. The Criminal Codes of the Russian Federation and the Tajik Repub-

lie provide for such a punishment as compensation lor the damage inflicted. The criminal codes of most of the Union republics (with the exception of the Russian Federation, Byelorussia, Lithuania, and Uzbekistan) provide for an additional punishment by depriving parental rights. The Criminal Code of the Uzbek Republic classifies this as a basic punishment.

In accordance with Article 2 of the Fundamentals of Corrective-Labour Law, all types of punishment may be classified in two groups in terms of their content:

a) punishment based on the application of corrective-labour measures: imprisonment, banishment, expulsion, corrective labour without detention, assignment to disciplinary battalion;

b) all other punishment not related to the above-mentioned.

Such is the system of punishment applied to offenders.

Chapter 2

PROCEDURE AND CONDITIONS FOR EXECUTING PUNISHMENT IN THE FORM OF IMPRISONMENT

1. Concept, Social Purpose, and General Prerequisites for Effective Re-education of Imprisoned Persons

Imprisonment means compulsory segregation of an offender, who has been convicted by court, in a special corrective-labour establishment (the term used in the USSR to denote penitentiary establishments). The law provides for a set of restrictions in rights for people serving sentences in prison. The behaviour of the convicted persons is regulated by corrective-- labour legislation. The restrictions imposed upon the rights of imprisoned persons are numerous enough, and their application not only prevents fresh crimes but also performs educational functions with regard to the convicted person.

Imprisonment is not an ordinary punishment, but a strict and extreme measure in the system of punishment and is applied with great caution.

Let us examine punishment in the form of imprisonment in its social aspect and see what its potentials are in preventing fresh crime and re-educating convicted persons. The basic func-

4-01471

tion of imprisonment Is to achieve the goals ol punishment. The fulfilment of this function incorporates the solution of the socio-educational task, the correction and re-education of convicted persons. Besides, there is also a criminological-preventive aim to achieve: prevention of fresh crimes by the convicted person, which is the purpose of special (particular) prevention, and prevention of crimes by other persons, which is the purpose of general prevention. The achievement of the socio-educational and criminological-preventive aims facilitates eradication of crime.

All these aims are achieved through the application of punishment (penalty), which is a severe means of education, but an essential one, since we deal with people who cannot be corrected by conventional means. In resorting to punishment as a forced measure the state is well aware of the fact that it has its seamy sides. The application of punishment entails difficulties not only for the convicted person, but also for the person's kin. This is an inevitable consequence of punishment, imprisonment first and foremost. The children are deprived of their father, the wife loses her husband, parents are separated from their children, the family is often left without a breadwinner.

Imprisonment as a form of punishment is objectively linked with the possible negative effects of exposure of the convicted person to the influence of other criminals. It must be admitted, however, that in a number of cases punishment, and imprisonment in the first place, have little effect. The following factors are usually taken into consideration when assess-

ing the efficacy of punishment, imprisonment in particular: a) whether persons discharged from corrective-labour establishments commit fresh crimes; b) whether convicted persons have an opportunity to commit crimes and thus harm society while serving their sentence; c) whether the sad example of the convicted persons serves as deterrent to others.

It stands to reason that there are many factors which are conducive to fresh crimes being committed by convicted persons, or by other people. It would be wrong to attribute the influence exerted solely to the factor of imprisonment. Punishment and the accompanying corrective-labour measures are calculated to achieve the purposes of punishment. However, this does not mean that success is achieved in every case. Not all convicted persons are equally susceptible to the influence of punishment and sometimes the threat of repeated punishment is neutralized by confidence in impunity. In this case the convicted person believes that he has been caught accidentally, due to certain circumstances which could have been avoided, that he has made a mistake which will not be repeated next time.

It also sometimes happens the offender believes that his actions are correct and is firmly entrenched in this belief by negative and sometimes distorted moral principles. In such cases it is more difficult to influence the convicted person, because his erroneous convictions have to be overcome and the incorrectness of his stand explained.

But even in those cases when punishment has been effective, the discharged offender may

4*

fall victim to a number of other factors, tie enters an environment which may influence him either positively or negatively (the latter is particularly typical of a situation when the ex-convict returns to the same environment where he became a criminal, or if he resumes contact with his former mates). The negative influence of the environment may mitigate or even bring to nothing the effects of punishment. Besides, the nature and intensity of influence exerted by punishment may also differ.

The greater the influence of punishment and the effect of corrective-labour measures on the convicted person and the greater the convicted person has altered his views on crime, the higher will be his resistance to evil. With all this, it is nevertheless essential to take into consideration the specific features of the personality, the will-power of the convicted person, first and foremost. A person with a strong will is less susceptible to the negative influence of the environment.

Therefore, fresh crime by convicted persons is dependent on a group of factors: a) the sentence served and the efficacy of corrective-- labour measures; b) the environment in which the discharged person finds himself; c) the specific features of the personality, particularly the will-power.

The influence of this group of factors explains the fact that fresh crimes are mostly committed by discharged persons within the first three years of leaving corrective-labour establishments. The highest occurrence of relapse falls on the second year following discharge. The logical conclusion is that punishment has a

lingering effect which wears off after a certain time. The negative influence of the environment is made felt and fear of punishment diminishes. People with weak will-power and those who refuse to abandon criminal ways deliberately inflict fresh damage to society, find themselves in the dock and then in a corrective-- labour establishment.

People with a criminal record continue their criminal career when they commit fresh crime, and no few recidivists broaden the scope of their activities. It is notable that those people whose first offence was not very dangerous resort to heavy and impudent crimes after being drawn into the criminal environment. On the other hand, people who have served long sentences for dangerous crimes, prefer to commit smaller offences. Failing to adapt themselves to conditions at large, having lost relatives, and refusing employment, these people resort to theft or, under the influence of alcohol, commit acts of hooliganism.

Thus, we see that imprisonment has both good and bad sides to it and there is no simple assessment. The existence of positive factors necessitates the preservation of imprisonment as a form of punishment. This is a forced solution, because it would naturally be better to re-educate all offenders by appealing to their intellect, by cultivating the best traits of their character which they had before or even have retained. This, however, is not feasible. From the point of view of public security, a dangerous criminal, a recidivist, cannot be allowed to go at large and inflict further damage to people. Such a criminal deserves to be segregated and

thus deprived of any opportunity to harm society. Hence, it is essential to do everything with the purpose of bringing positive influence to bear on that person, correcting him and returning him a useful citizen to society.

It is important to estimate correctly the degree of the person's degradation and what positive qualities still persist in him in order to appoint the minimum penalty that would not make the criminal worse, but would force him to analyze his destiny.

Imprisonment is expedient only in those cases when the crime committed is grave and when the feeling of social justice demands severe punishment of the criminal. Under these circumstances, any other punishment would be viewed by society as an injustice. Imprisonment is also expedient when the crime committed is not very grave, but the personality of the offender is such that requires his segregation. All this means that imprisonment is such a type of punishment which is called upon to ensure adequate penalty to the offender in the interests of his correction, and to solve the tasks of special and general prevention, mentioned in par. 4 of Chapter 1.

A correctly appointed and reasonably executed punishment in the form of imprisonment is effective, and as long as there exist recidivist crimes and grave crimes are committed it is premature to abandon this form of punishment. The positive impact received by the offender from the sentence is further cultivated in his post-penitentiary activities. Hence, punishment, and imprisonment in particular, must be viewed as a means of correcting criminals and protecting society against crime.

2. Prerequisites

for Effective Re-education

of Imprisoned Persons

A. INDIVIDUALIZATION OF PUNISHMENT (IMPRISONMENT) AND CLASSIFICATION OF CONVICTED PERSONS

Imprisonment is effective when it not only does not demoralize the convicted person, but also has positive influence on him. This task is achieved both in appointing and in executing the punishment, provided the penalty is individualized.

The general principles concerning individualization of criminal responsibility and punishment are laid down in criminal law. Criminal legislation (Article 32 of the Fundamentals of Criminal Law) demands that courts appoint punishment within the limits of sanctions envisaged by legal regulations, on the basis of the nature and degree of social danger of the crime, the personality of the offender, and the circumstances. The court examines the concrete circumstances of the case and takes into consideration both the extenuating and the aggravating circumstances (Articles 33 and 34 of the Fundamentals of Criminal Law). In ruling on the specific type and degree of the punishment, the court is guided by that part of the criminal law provisions which sets the punishability of a given crime and is known as sanctions.

There are no indefinite sentences in Soviet law, and hence there are no indefinite sanctions. On the other hand, there are no sanc-

tions that have been absolutely denned. The sanctions are formulated in such a way that the court is always able to select the required punishment on the basis of an individual approach to the offender. The sanctions always indicate the upper limit of the punishment (maximum punishment, in particular, the maximum period of imprisonment for a given crime) which the court cannot exceed. The lowest limit ( minimum punishment, in particular, the minimum period of imprisonment for a given crime) is sometimes mentioned in the sanction itself. When such specification is omitted, the court is guided by the provision which envisages a given punishment. For instance, if the sanction stipulates that a given crime deserves a sentence of up to 3 years of imprisonment, this means that the minimum sentence imposed by the court may be 3 months of imprisonment, because Article 24 of the Criminal Code of the Russian Federation (and the criminal codes of the other Union republics) stipulates that the minimum sentence of imprisonment is no less that 3 months. Sanctions may be of an alternative nature, i.e. they may provide for one of several punishments for a given crime, stipulating the degree of each punishment.

The court has no right to exceed the maximum sentence stipulated for by the sanction, but it has the right to impose punishment below the minimum level provided for by the sanction in view of exceptional circumstances in the case and the personality of the offender. The court may also resort to a milder form of punishment (corrective labour without imprisonment to substitute for imprisonment) in ac-

cordance with Article 37 of the Fundamentals of Criminal Law.

In the preceding chapter we dealt with suspended sentences of imprisonment and corrective labour without imprisonment, suspended sentences of imprisonment with compulsory employment of the convicted person, postponement of execution of the sentence in the case of offenders under age, the substitution of criminal responsibility by administrative punishment, public reprimand and education, and the allotment of measures of compulsion of an educational nature with regard to offenders under age.

All this testifies to the humane nature of the Soviet court whose activities are based on individualization of responsibility and punishment. Individualization of punishment is not limited to its allotment, it is also pursued in the process of execution. It should be pointed out that individualization of punishment at its stage of execution differs from individualization at the stage of allotment.

Individualization of punishment at the stage of allotment is provided for by criminal law, and is expressed, in particular, in determining the type and degree of punishment, or, if the punishment has subtypes, in determining the subtype. A court ruling may allot imprisonment as a type of punishment. At the same time, the court specifies the place for serving the sentence---a corrective-labour colony or prison, the corrective-labour colony of a specific regime, i.e. the court determines the subtype of the punishment. The number of years and months of imprisonment determines the degree of the punishment.

Individualization of punishment at the stage of its execution envisages variations in limitations of rights depending on the conduct of the convicted person. The Fundamentals of Corrective-Labour Law of the USSR and the Union Republics list all possible variations.

Individualization of execution of punishment goes hand in hand with individualization of the concomitant corrective-labour measures. In other words, there is individualization in the execution of the punishment itself and individualization in the application of corrective-labour measures. An individual approach stems from the personality of the convicted person, the nature and degree of social danger of the crime committed, the circumstances of the case ( including both extenuating and aggravating circumstances), the danger presented by the criminal himself and his conduct during service of the sentence. The individual approach also means the selection of educational measures required for the given offender (enrolment at a general education school, vocational training, assignment to some kind of activities, etc.).

Naturally, individualization of punishment has its reasonable limits and there cannot be as many regimes as there are convicted persons. In order to ensure genuine individualization of punishment, it is necessary for the personnel of penitentiary establishments to build close contacts with the convicted persons, while remaining within the reasonable limits of general demands. For this purpose, it is essential to differentiate punishment and corrective-labour measures, i.e. to establish a general pattern of demands not for the entire body of convicted per-

sons, but for more or less homogeneous groups. It is necessary to divide the convicted persons into certain groups, categories, in other words--- to classify them.

Inasmuch as classification of convicted persons pursues the task of distributing them in corrective-labour establishments, so that offenders belonging to one classification group are kept together under one regime, differentiation must be co-ordinated with the system of corrective-labour esablishments. To be more precise, classification preconditions the system of the basic types of corrective-labour establishments, which embraces, under Article 11 of the Fundamentals of Corrective-Labour Law, correctivelabour colonies (for adult offenders) and educational-labour colonies (for offenders under age).

Thus, a classification group of imprisoned persons is one which, in accordance with general regulations, is kept in a corrective-labour establishment of one type.

The rules for dividing convicted persons into groups (categories) and their distribution in corrective-labour establishments are outlined in Article 23 of the Fundamentals of Criminal Law and Articles 13 and 14 of the Fundamentals of Corrective-Labour Law. The above-- mentioned classification of convicted persons is performed by the court and is specified in the verdict.

There have been established the following classification groups of the convicted persons (males):

a) persons sentenced for the first time to up to 5 years' (in exceptional cases up to 10 years') imprisonment for an accidental crime;

b) persons sentenced for the first time for a crime that is not classified as grave (not included into Article 7^^1^^ of the Fundamentals of Criminal Law), or sentenced for the first time to a maximum of 3 years for a grave crime, and also persons sentenced for the first time to more than 5 years (in exceptional cases 10 years) for an accidental crime;

c) persons sentenced for the first time to more than 3 years' imprisonment for grave crimes (listed in Article 7^^1^^ of the Fundamentals of Criminal Law);

d) persons convicted for especially dangerous state crimes (provided that they cannot be classified as especially dangerous recidivists);

e) persons who have already served prison sentences (not classified as especially dangerous recidivists);

f) persons classified as especially dangerous recidivists.

According to Article 14 of the Fundamentals of Corrective-Labour Law, there is another, seventh, classification group of convicted persons ---those who are not classified as especially dangerous recidivists, but whose death sentence has been commuted to imprisonment by pardon or amnesty.

The last 2 classification groups are subdivided: especially dangerous recidivists sentenced for especially dangerous state crimes, and other especially dangerous recidivists; and persons sentenced to death for especially dangerous state crimes, with the sentence commuted to imprisonment by pardon or amnesty, and other persons sentenced to death with the sentence similarly commuted.

The above-mentioned classification of C6 nvicted persons sentenced to imprisonment is based on a mixed criterion---the kind of malice prepense, the gravity of the crime committed, the period of imprisonment under the court sentence, the personal traits of the convicted person in the light of his previous imprisonment. Convicted persons of the first classification group as a rule serve their sentences in open corrective-labour colonies intended for accidental offenders. Convicted persons of the second group are sent to corrective-labour colonies with a conventional regime. The third group serves sentence as a rule in colonies with an intensified regime. The fourth and fifth groups are kept in separate colonies with a strict regime. The sixth and seventh groups are also kept separately in colonies with a special regime.

Under Article 23 of the Fundamentals of Criminal Law and Articles 13 and 14 of the Fundamentals of Corrective-Labour Law, women offenders serve their sentences in corrective-labour colonies with a conventional and strict regimes. The latter are for women classified as especially dangerous recidivists convicted for especially dangerous state crimes, and also for women whose death sentences have been commuted to imprisonment by pardon or amnesty. All other categories of women serve their sentences in colonies with a conventional regime.

In the Russian Federation, the Ukrainian, Kazakh, Lithuanian, and Armenian republics, however, the corrective-labour codes stipulate that women convicted for the first time, irrespective of the gravity of the crime, and women

previously already served prison sentences, spend their terms in separate corrective-labour colonies with a conventional regime.

There are, therefore, 4 classification groups of convicted women: those sentenced to imprisonment for crimes other than especially dangerous state crimes and not classified as especially dangerous recidivists; women sentenced to imprisonment for especially dangerous state crimes; women classified as especially dangerous recidivists; women whose death sentence has been commuted to imprisonment by pardon or amnesty. In the Russian Federation, the first classification group is subdivided: women sentenced to imprisonment for the first time and those who have already served sentences of imprisonment.

We have examined classification of convicted persons sentenced to imprisonment in correctivelabour colonies. However, the court may rule that the convicted person serve part or the entire sentence in prison. This applies to a) especially dangerous recidivists, b) persons over 18 committing especially dangerous state crimes, c) persons over 18 committing other grave crimes and sentenced to over 5 years of imprisonment.

There is a special classification for male juvenile delinquents sentenced to imprisonment. Young offenders serving sentences for the first time for minor crimes or young offenders serving sentences for the first time of up to 3 years for grave crimes are kept in educational-labour colonies with a conventional regime. Young offenders with earlier prison records and also those who have been sentenced for grave crimes for more than 3 years are sent as a rule to edu-

cational-laDour colonies with ah intensified regime.

The corrective-labour codes of the Russian Federation and the Ukrainian, Lithuanian, Armenian and Estonian republics contain provisions for juveniles convicted for deliberate crimes while serving sentences and those systematically violating the regime to be held separately from other young offenders but in the same educational-labour colonies with an intensified regime. In the Ukrainian Republic, there is a rule according to which juvenile offenders, on reaching the age of 17 may be kept separately from other categories of convicted persons, provided that they have firmly taken the road of reform.

All convicted females under age serve their sentences in educational-labour colonies with a conventional regime, separately from the male convicts.

The law (Article 23 of the Fundamentals of Criminal Law) allows deviation from the general rule of determining the type of correctivelabour or educational-labour colony. This deviation depends on the nature and degree of social danger of the crime committed, the personality of the offender and the circumstances of the case. It is only the court that may rule on the subject in pronouncing sentence and in so doing it must substantiate the deviation.

Under the terms of deviation from the general rule, punishment may be allotted:

a) to persons sentenced for the first time for accidental crimes to a period of from 6 to 10 years---to be served in an open corrective-labour colony for accidental offenders;

b) to convicted persons not classified as especially dangerous recidivists---in correctivelabour colonies of any type, except those with a special regime;

c) to convicted male offenders under age--- in educational-labour colonies with a conventional regime instead of one with an intensified regime.

This means that especially dangerous recidivists, sentenced to imprisonment in colonies, are always sent to a colony with a special regime. At the same time, the law allows for convicted persons, whose death sentence has been commuted to imprisonment by pardon or amnesty, to be held in colonies with a milder regime than the special one. Persons sentenced to imprisonment in colonies with a conventional, intensified, or strict regimes can under no circumstances be sent to a colony with a special regime.

A convicted person under age sentenced to imprisonment in an educational-labour colony with a special regime cannot be sent to a colony with an intensified regime.

The above-mentioned rules of classifying convicted persons constitute the basis for assigning them to various corrective-labour establishments by the administration of these establishments under a court ruling. Such a classification of convicted persons is termed as legal classification. It is indeed legal, because it is stipulated in legal provisions and executed in the course of the juridical action---the pronouncement of judgement or the adoption of a decision altering a sentence. In the end, legal classification serves the purpose of re-educating and correct-

ing convicted persons.

``-•':•"•

With the purpose of exerting practical corrective-educational influence, every convicted person at places of detention is classified in terms of psychology and pedagogics, e.g. the degree of his social and pedagogical neglect and readiness to reform. Also taken into consideration is the social orientation of the convicted person and the nature and gravity of the crime committed.

Thus, the classification of convicted persons, which is based on law, leads to their distribution at places of imprisonment, and this creates the prerequisites for individualization in the execution of punishment of these persons.

B. TERM OF IMPRISONMENT ALLOTTED BY THE COURT

A substantial factor in the execution of punishment in the form of imprisonment is its duration. Soviet criminal law does not hold provision for life imprisonment. As a rule, sentences¹ range up to 10 years of imprisonment. It is' only in the case of extremely grave crimes, leading to particularly heavy consequences, arid also for especially dangerous recidivists, that the maximum sentence may be 15 years of im-^: prisonment, but this punishment is appointed only by special provisions in the legislation of¹ the USSR and the Union republics. Under no' circumstances can this period be exceeded. '

There is, however, one exception with regard to the allotment of maximum imprisonment; sentences. When a person who has not'^v served'

5-01471

e»-

a previous sentence for an earlier crime is convicted for a new one the two terms of imprisonment may then be summed up. This means that the ultimate sentence might exceed the maximum stipulated by any of the articles in the earlier and the current court ruling. However, the court cannot exceed the maximum sentence provided by law for a given type of punishment (i.e. for imprisonment) beyond 10 years in ordinary cases and 15 years in special cases stipulated by law.

The period of imprisonment is a major factor ensuring efficacy of the punishment. It is known from experience that after a certain period of punishment, say after 7 or 10 years of imprisonment, its educative effect diminishes. Punishment, in terms of educational influence, is then executed without any effect, leaving only the element of penalty, with its general prevention aspect. As for the convicted persons, there are recorded cases of complete indifference or even psychological outbreaks resulting from excessive detention. The way out from this situation is to apply various methods of keeping that would stimulate the convicted person to pay attention to the fresh prospects of discharge. This will be discussed in par. 5 of the current chapter.

A separate problem is represented by what is called short-term imprisonment. It is defined as imprisonment for a period of up to 6 months or one year. Article 44 of the Fundamentals of Criminal Law envisages early conditional discharge of convicted persons in stipulated cases (see Chapter 2, par. 9), provided they have served at least half the term of their sentence. Under Article 45 of the same Fundamentals,

offenders under age may be conditionally discharged after serving one third of the term. For this reason, a sentence of one year's imprisonment may well become in practical terms a term of 6 to 8 months and even less. The minimum term of imprisonment is set at 3 months.

It follows from the above-mentioned that short-term imprisonment means serving a term of punishment from three months to one year. There have been recommendations made by some Soviet jurists to abolish short-term imprisonment and replace it by punishment not involving detention. But since Soviet criminal law provides for a one-year term of imprisonment, it is the duty of corrective-labour establishments to see to it that short-term imprisonment is effective.

•In order to correctly assess the potentials of short-term imprisonment and the nature of its impact on the convicted person, it is necessary to clarify the mechanism of the influence of punishment in the form of imprisonment. It should be said at this point that the aims of punishment, which are uniform, are each time achieved only on an individual basis.

In appointing punishment in the form of imprisonment for a period of over 3 years (on the basis of the nature and gravity of the offence, the social danger presented by the offender and the circumstances of the case), the court proceeds from the fact that the convicted person must be exposed to a set of positive educational measures: raising his educational level, giving him work training and cultivating his labour habits, remedying defects in his education and

5*

developing a new world outlook in him. Imprisonment, as any other form of punishment, is essentially a penalty, and as such cannot alone achieve the above-mentioned aims. That is why punishment is coupled with the special educational process of corrective-labour influence. The penal effect is often only a prerequisite for reshaping the psychology of the convicted person.

To achieve complete correction, let alone reeducation, it is necessary to maintain a systematic, purposeful, and prolonged educational influence by means of drawing the convicted persons into labour activity. Here again, the duration of the educational influence depends on the personality of the convicted person, but at any rate it is not measured in days, weeks or even months. The process of corrective-labour influence envisages the development of labour habits, a desire to study, new positive convictions---all that requires time.

Labour habits are cultivated in the process of vocational training. A person develops an urge to learn when properly motivated. In order to master a trade, one must take a training course of several months, and perhaps a whole year. Besides, the labour habits acquired in the process of training need to be consolidated in production activity. In order to understand the importance of schooling, the person must finish at least one grade. But it is easier to teach a person than to educate him, and for this reason it takes more time to reshape erroneous views and cultivate new ones.

Convicted persons are admitted to correctivelabour establishments the year round, and this

means that they may miss the beginning of the school term or the beginning of vocational training course and thus fail to join the educational process for some time. Taking all the factors into account, it turns out that the minimum time required for the effective realization of the corrective-labour process is to be equal to a year and a half or two. More time may be added to cope with the educational process.

It may sound paradoxical to assert that in order to train and educate a person one must keep him in a corrective-labour establishment. There is nothing paradoxical about this, however, because we are dealing not with honestminded citizens, but with people with an unstable psychology, capable of committing crime, convicted of crime and accordingly subjected to imprisonment.

Such is the mechanism of the influence of moderate or long-term imprisonment on convicted persons. In the case of short-term imprisonment, the concomitant corrective-labour influence is much restricted, because there is simply no time to put it into effect, and this means that only punishment remains effective. Punishment, as a penalty, is capable of educating a person in a certain sense. It is expedient, therefore, to allot short-term imprisonment to persons committing less dangerous crimes, persons who are not spoilt, do not require special educational measures for their rehabilitation, who merely need to be punished, and for whom the very fact of segregation is already a severe punishment. For some people short-term imprisonment is ineffective, because they fail to feel the essence of the penalty in such a short period,

while, as mentioned earlier, there is no time to apply corrective-labour influence.

We thus arrive at the conclusion that shortterm imprisonment is effective only with regard to a small section of offenders. But since it is assumed that these people are relatively unspoilt and do not require re-education, they may be punished without resorting to imprisonment. It would be appropriate to note that most of the sanctions, provided by the criminal codes of the Russian Federation and the other Union republics with regard to imprisonment terms of up to one year, are alternative---corrective labour applied without imprisonment, or fines or other forms of punishment.

And still there is no reason to abandon shortterm imprisonment, because a situation might arise when it is more expedient to imprison an offender for several months rather than expose him to some other punishment. Besides, shortterm imprisonment may be applied not only when stipulated by an article of the criminal law. Imprisonment is classified as short-term when it is substituted for part of a correctivelabour sentence. Under Article 25 of the Fundamentals of Criminal Law, a person convicted to corrective labour without imprisonment and persistently refusing to serve his sentence, may be imprisoned by a court ruling for the period of his term of corrective labour.

In the case of short-term imprisonment it is hardly possible to expect any influence by corrective-labour measures. The emphasis, therefore, is on the effect of the punishment itself, its regime, increased exactingness, discipline and responsibility. Short-term imprisonment must

not be treated as a conventional form of punishment, because its purpose is to exert strict influence on the offender.

3. Corrective-Labour

Establishments

and Centres

for Pre-trial Detention

In the Soviet Union, there is a strict rule concerning the separate keeping of persons who serve a term of imprisonment and those who are taken into custody pending trial.

Under Article 11 of the Fundamentals of Corrective-Labour Law, corrective-labour colonies, prisons, and educational-labour colonies are the facilities used for persons sentenced to imprisonment. Adults sentenced to imprisonment serve their terms in a corrective-labour colony or prison. Offenders under the age of 18 are kept in educational-labour colonies. On achieving full age, the offenders may remain at the educationallabour colonies till they turn 20, if this is found to be essential for consolidating the results of correction and re-education, completing schooling or vocational training. If this is not necessary, the offenders who come of age are transferred to a corrective-labour colony with a conventional regime to serve the remaining part of their sentence. If the offender has been kept in an educational-labour colony with an intensified regime and requires further strict influence, he may be transferred to a corrective-labour colony with an intensified regime.

. Corrective-labour colonies are subdivided into .open corrective-labour colonies for accidental offenders, and corrective-labour colonies with a conventional, intensified, strict and special regimes. Convicted persons are sent to these colonies -under a court sentence, when it comes into force. There are also open corrective-labour colonies for convicted persons who have firmly decided to reform, have served part of their sentences at colonies with a conventional, intensified, and strict regimes and have been transfer_red there under a court ruling. • There are no categories or types of prisons. Educational-labour colonies are subdivided into colonies with a conventional regime and .those .with an intensified regime (mentioned in .Chapter 2, par. 2, Section A). , The law also establishes regulations for the .territorial distribution of convicted persons. Under- Article 6 of the Fundamentals of Correc. tive-Labour Law, persons sentenced to imprisonment for the first time serve their term in colonies located, as a rule, on the territory of the . republic where these persons resided prior to , arrest or conviction. In the case of a Union re• public with a vast territory, this rule is specified. For instance, Article 6 of the CorrectiveLabour Code of the Russian Federation specifies that this category of offenders serve their sentences on the territory of the autonomous republic, territory or region where they resided prior , to arrest or conviction. It is allowed to dispatch convicted persons to another Union republic if this is conducive to their correction and re-- education.

Persons with an imprisonment record, persons

whose death sentence has been commuted to imprisonment by pardon or amnesty, persons convicted for especially dangerous state crimes, foreigners and stateless persons serve their sentences in specially assigned correctivelabour establishments irrespective of their place of residence prior to committing crime or arrest.

Convicted women, persons under age and those who are in need of special medical treatment are sent to serve their sentences in other parts of the country, if the area where they resided prior to arrest or have been convicted does not have the required corrective-labour establishments.

Offenders subjected to imprisonment prior to trial, as a measure of suppression, are kept in special detention centres. The procedure for imprisonment before trial (or the execution of the measure of suppression by taking the offender into custody) is set by the Statute of Imprisonment Before Trial. ' Under Article 4 of the Statute, persons imprisoned before trial are kept in an investigation ward. As an exception, these persons may be kept for a limited period of time in other establishments such as a prison, cells for persons imprisoned before trial, at the premises of territorial departments of internal affairs and, for servicemen, guard-- houses.

Persons taken into custody are kept separately from convicted persons serving sentences of imprisonment.

All places of imprisonment, corrective-labour establishments and centres for pre-trial deten-

~^^1^^ Records of the USSR Supreme Soviet, 1969, No. 29, p. 249.

tion, play a definite role within the system of state organs. Their activities are directly linked with the execution of justice.

Article 151 of the Constitution of the USSR says: "In the USSR justice is administered only by the courts." The act of justice, as expressed in the verdict of guilty, resolves two issues ---establishes the guilt of the offender and allots punishment. Article 2 of the Fundamentals of Criminal Procedure of the USSR and the Union Republics lays down that the act of justice shall be ensured by swift and complete disclosure of the crime, which is achieved by instituting criminal proceedings and preliminary investigations. In the course of preliminary investigations, the measure of suppression may be applied if there is sufficient ground to believe that the defendant, remaining at large, might try to avoid investigations and court proceedings, or hamper the establishment of the truth, or engage in criminal activity (Article 33 of the Fundamentals of Criminal Procedure). The measure of suppression may be retained by the court which has instituted proceedings under the case and passed sentence, until the sentence takes legal force. Imprisonment before trial as a measure of suppression is practised when the minimum term of imprisonment may be imposed for the crime committed is one year.

Execution of punishment by the state organs, in terms of fulfilment of their functions, is nothing else btit fulfilment of the court order, i.e. it is an act of justice. Hence, the activities of the organs of pre-trial detention and correctivelabour establishments are treated as a means of ensuring the functions of justice, realization of

which is solely within the competence of the court.

Applying international terminology to places of detention, we may say that the prisons and corrective-labour colonies with a special regime constitute establishments of the closed type; corrective-labour colonies with a conventional, intensified, and strict regimes as well as educational-labour colonies constitute establishments of the semi-open type; in the case of open colonies the term speaks for itself.

In order to ensure rational utilization of the entire term of punishment Article 12 of the Fundamentals of Corrective-Labour Law establishes a rule according to which the convicted person must be assigned to the corrective-labour establishment within 10 days of the sentence coming into force or of the ruling issued for its actual commencement (the point is that the execution of the sentence may be postponed by the court, for instance, for health reasons). The administration of the pre-trial imprisonment centre is obliged to inform the family of the convicted person, whose sentence has come into force, about where he is assigned to serve his term of punishment (Article 14 of the Fundamentals of Corrective-Labour Code of the Russian Federation). Article 12 of the Fundamentals of Corrective-Labour Law provides and outlines the procedure for retaining in the investigation ward or prison convicted persons assigned to corrective-labour establishments.

In the case when criminal proceedings instituted against another person require investigations involving the already convicted person, there may be a delay in assigning the latter to

prison, corrective-labour colony or educationallabour colony. A sanction of the procurator of the region, territory or autonomous republic, or the military procurator of the military district, fleet, army group or branch of the USSR Armed Forces is required to retain the convicted person in an investigation ward or prison for a period of up to 2 months. The procurator of a Union republic or chief military procurator sanctions detention for a period of up to 4 months, while detention for a period of up to 6 months requires the sanction of the Procurator-General of the USSR. These provisions are outlined in Article 12 of the Fundamentals of Corrective-Labour Law.

Article 15 of the Corrective-Labour Code of the Russian Federation empowers the courts to adopt decisions that would retain convicted persons in investigation wards or prisons for the duration of the hearings, if the participation of these persons is required in court proceedings concerning crimes committed by other offenders.

If the convicted person faces fresh charges, other than the ones for which sentence has already been passed, and if measures of suppression are decided upon by the court, the person is retained in the investigation ward or prison. In this case, the period of detention depends on the period of investigation as stipulated by Article 34 of the Fundamentals of Criminal Procedure. The person sentenced to imprisonment, but retained in an investigation ward or nrison due to investigations of a crime committed by another person, must be kept in conditions corresponding to the punishment allotted. If the person has been sentenced to a prison term, he

must be kept in conditions corresponding to the prison regime stipulated by law. If the punishment allotted is imprisonment in a correctivelabour colony, the offender must be kept in conditions as close as possible to those of a colony with the corresponding regime, as the conditions of isolation in the pre-trial detention centre allow it.

The convicted persons are practically barred from having lengthy meetings, staying together for several days, with a near relation.

Inasmuch as the convicted persons are kept indoors, they are granted a daily walk. With regard to the usage of money, short-term meetings, parcels, books, mail---these are regulated by the same provisions which are established for the colonies in which the convicted person is to serve his sentence (Article 73 of the Corrective-Labour Code of the Russian Federation).

If the offender is convicted, his isolation during the period of investigation of the criminal case and after the court hearings till the sentence comes into force is taken into consideration. The period of imprisonment before trial is included into the overall period of punishment allotted by the court sentence.

Persons subjected to measures of suppression in the form of imprisonment before trial are kept in special conditions of isolation, which prevents them from maintaining free contact with other persons under investigation and free passage through the territory of the detention centre. The chores at the investigation ward (and in prisons) are performed by persons convicted to imprisonment. The law (Article 12 of the Fundamentals of Corrective-Labour Law)

allows first offenders, convicted for crimes that are not grave, to remain at investigation wards (or prisons) for chores. However, these must be offenders sentenced to imprisonment only in a correction-labour colony with a conventional regime, and their written consent is required for them to be assigned to perform the chores at the investigation ward. Article 21 of the Fundamentals of Corrective-Labour Law specifies the conditions of keeping convicted persons retained in the investigation ward for doing the chores. These offenders enjoy a regime that is similar to that of a colony with a conventional regime. They may spend money and receive parcels under rules effective in colonies with a conventional regime. These persons, however, are kept in a prison building. Under legislation adopted in the Russian Federation and the Kazakh Republic, for instance, their cells are not locked. The two lengthy meetings with relatives, which are allowed under the conventional regime, are replaced by six short-term meetings. If the offenders work indoors, they are given a daily walk.

hour, educational activities, schooling and vocational training. These are the basic means that are called upon to ensure that: a) each convicted person realizes the social danger of the committed crime and confirms this understanding in practical behaviour; and b) each convicted person is psychologically ready to -react correctly to the punishment allotted and to behave properly after discharge.

The basic means of correction and re-- education involve the constant application of psychological means of influence, and also various methods of pedagogics. It goes without saying that the development of consciousness and psychology resulting from punishment requires practical substantiation---a change in the legal status of the convicted persons, its gradual approximating the conditions of life at large. Only this guarantees correction and re-education of convicted persons.

5. Regime of Imprisonment and Its Educative Role

4. Basic Means for Correcting and Re-educating Offenders Serving Sentences of Imprisonment

Regime in the case of execution of punishment means the way of life of the convicted persons with its basic aspects outlined by the provisions of corrective-labour law. That way of life implies certain behavioural elements, and the most important thing is that it creates a definite order and lays down what should be included into life. The regime for a given punishment establishes, by means of a set of rules, the way of life of the convicted persons and all provisions for it.

Imprisonment entails specific conditions and application of measures of correction and reeducation, i.e., the regime, socially useful laIB

It follows from the above-mentioned that the regime expresses the very essence of punishment---its inherent penalty. That is why the nature of punishment, including imprisonment, is shown in the regime.

By the provisions of corrective-labour law the regime includes not only those rules which express penalty, but also such rules which are compulsory, and yet do not express petialty (e.g., the requirement to be polite, to be tidy, etc.). Sometimes, one and the same rule combines both penalty and the requirement to maintain a certain order in corrective-labour establishments (e.g. rules for contacts with the outside world).

The regime is an essential prerequisite for exercising corrective-labour influence on convicted persons. It ensures mandatory work by the convicted persons, their education, their schooling and vocational training. Moreover, that element of the regime, which does not express penalty, comes out as a measure of corrective-labour influence.

The above-mentioned is relevant to the regime of imprisonment exercised at corrective-- labour establishments, and expresses the essence and content of imprisonment. The regime of corrective-labour establishments, therefore, means a procedure for exercising punishment in the form of imprisonment, which is governed by legal provisions and expressed in a set of rules. The regime of corrective-labour establishments has specific features in that it corresponds to certain requirements, pursues certain objectives, has its own content and the means of its realization.

According to Article 19 of the Fundamentals of Corrective-Labour Law, the requirements of the regime embrace the following:

---mandatory segregation of the convicted persons and their permanent supervision to prevent any further crimes or anti-social acts;

---precise and strict performance of their duties;

---differentiated conditions for keeping convicted persons, depending on the nature and degree of social danger of the crime, the personality and conduct of the convicted person.

Fulfilment of the requirements of the regime enables the convicted persons to exercise the rights allotted to them, promotes the corrective-labour influence, educates the convicted persons in the spirit of discipline, adherence to community rules and standards of day-by-day conduct.

The objective of the regime is to ensure the correct execution of punishment provided by the Fundamentals of Corrective-Labour Law and other laws, with the purpose of achieving its goals. All content of the regime is directed towards fulfilling the above-mentioned requirements and task.

The rules which make up the content of the regime may be divided into 2 groups:

A. The sum total of rules which express the duties and rights of the convicted persons, and reveal the essence of punishment and the contents of the specific kind of imprisonment. Under these rules, which are based on Article 19 of the Fundamentals of Corrective-Labour Law, the convicted persons wear uniform clothes (in colonies with a special regime this uniform is

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of a special fashion); they may be subjected to searches; their mail is censored and incoming parcels are examined; the convicted persons are not allowed to keep money or valuables or other articles banned from use in corrective-labour establishments; whenever a convicted person is found to keep money and valuables the latter are confiscated by the state.

The specific rights conceded to convicted persons also testify to the limitations of rights typical of imprisonment. For instance, the convicted person may purchase food and other essential items only by written order; there are special provisions made for meetings and mail and receiving parcels. The nature and degree of limitations of rights depend on the type of the corrective-labour establishment and the type of colony. The minimum limitations are in open colonies and maximum in prisons.

B. The sum total of rules which express the duties and rights of convicted persons, ensure their proper conduct, their life together, a fixed mode of everyday life. Under provisions of Article 36 of the Fundamentals of Corrective-- Labour Law, the convicted persons enjoy adequate living conditions, corresponding to requirements of hygiene; the convicted person receives an individual bed and bedding, underwear, clothing and footwear for the given season; nutrition is based on scientifically substantiated norms (for details see par. 8 of this chapter).

The means for ensuring the regime, besides the guard and supervision of the convicted persons, includes the system of encouragement and disciplinary punishment and the exactingness of the administration of the corrective-labour

establishments. All this is fixed in the rigid internal regulations of the corrective-labour establishments.

The concept of internal regulations is introduced by the Fundamentals of Corrective-Labour Law (Article 19) and specified in the corrective-labour codes of the Union republics. The Corrective-Labour Code of the Russian Federation, for instance, outlines the following contents of the regulations:

---procedure for admission of convicted persons to corrective-labour establishments;

---rules for the conduct of convicted persons during work and recreation;

---list of employment and posts from which convicted persons are barred;

---list and quantity of articles and belongings which the convicted persons may keep;

---procedure for removing articles which are prohibited;

---rules for roll calls, meetings, reception and delivery of parcels, book parcels and mail;

---list and quantity of food and other essentials allowed for sale to the convicted persons.

There are similar regulations in the corrective-labour codes of the Kazakh, Latvian, and Armenian republics. Under the Corrective-Labour Code of the Ukrainian Republic, the internal regulations cover the conduct of the convicted persons and the actions of the administration of the corrective-labour establishments. The regulations cover the daily routine of the convicted persons and all the services of the correctivelabour establishments, the procedure for performing the duties and exercising the rights by the convicted persons, the relationship between

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the convicted persons and the administration of the corrective-labour establishment, and the functions of the administration in organizing and implementing the regime. The Code stipulates that the daily routine for the convicted persons and all the services of the corrective-labour establishment is established by the chief administrator. The Code also sets the time for meals, work, training, an uninterrupted 8-hour sleep, educational and other activities with the convicted persons and a free time of 1 to 2

hours.

Isolation from the outside world means that the convicted person is constantly kept in a secluded and guarded zone or in a cell of the corrective-labour establishment. Outside of the territory of the corrective-labour establishment, en route to work and back, the convicted persons proceed under guard and are prevented from contact with anyone outside. Isolation is also ensured by a special procedure for contact with the outside world.

There are three exceptions to the rule. First, those who have firmly taken the road of reform, may be allowed to move about outside the territory of the corrective-labour establishment without guards, or outside the territory of an educational-labour colony without an attendant, in exceptional cases, if the need arises for such movement in the course of fulfilling work ( Article 38 of the Fundamentals of Corrective-Labour Law). The right to move about without guard is granted to convicted persons pending early conditional discharge, provided they have served one third of their sentence, and to others, provided they have served two thirds of their

sentence. Especially dangerous recidivists and other dangerous criminals are not granted this right. The right to movement without an attendant is granted after serving at least 6 months of the sentence.

Second, persons serving their sentences in open colonies are kept under supervision but without guard (Article 20 of the Fundamentals of Corrective-Labour Law).

Third, under Article 36 of the Fundamentals of Corrective-Labour Law, convicted women who display conscientious attitude to work and fulfil all requirements of the regime, may be allowed by the administration of the correctivelabour establishment, with approval of the supervisory commission, to take up residence outside the colony during the period of their release from work due to pregnancy and till the child reaches the age of two.

The life of women outside the colony is regulated by the corrective-labour codes of the Union republics. Article 33 of the CorrectiveLabour Code of the Russian Federation stipulates that convicted women living outside the colony compound:

---must take up residence close to the compound and remain under the supervision of the internal affairs agencies;

---may wear ordinary civic clothing, possess money and spend it freely;

---may move about freely within the territory specified by the chief administrator of the colony between rising time and bed time;

---are allowed to send mail, receive printed matter, food and other parcels, and have an unlimited number of visits,

After the termination of the period of release from work due to pregnancy and child delivery, the convicted women are obliged to resume their duties according to the instructions of the administration on the same basis as the other inmates of the corrective-labour establishment. In those cases when a convicted woman living outside the colony systematically or deliberately violates the regime or the established rules of behaviour, the chief administrator of the corrective-labour establishment may take a decision to return her to the colony for the remaining part of the sentence.

The internal regulations provide for fixed relationship between the convicted persons and the personnel of the corrective-labour establishment. The former are obliged to address the latter as ``citizen'' adding their rank or title (e.g. "citizen captain", "citizen doctor", etc.) and to use the polite form of address in conversation. In educational-labour colonies the convicted persons are allowed to address the personnel by their first name and patronymic. The personnel of corrective-labour establishments also use the polite form of address in conversation with convicted persons and address them as ``convicted'', ``citizen'' or by their family name. The personnel of educational-labour colonies are allowed to use the more intimate form of the pronoun ``you'' (``thou''---commonly used in Russian) and address the convicted persons as ``pupil'' or by the first name.

The convicted persons are allowed to purchase food and other essentials with money that they have earned at the place of detention, according to Article 23 of the Fundamentals of

Corrective-Labour Law. Disabled convicts, pregnant women, breast-feeding mothers and juveniles are allowed to make purchases using money orders received from outside the colony. Fifteen roubles is the maximum monthly spending allowed for foodstuffs and other essential items. The precise sum is differentiated by corrective-labour codes, depending on the type of the corrective-labour establishment, the regime, the term already served, the conduct of the convicted person, his attitude to work, the climate, and the nature of the work done. The corrective-labour codes of the Union republics set the following limits on money to be spent by written order for the purchase of foodstuffs and other essential items: up to 7 roubles per month at corrective-labour colonies with a conventional regime; up to 6 roubles at colonies with an intensified regime; up to 5 roubles at colonies with a strict regime; up to 4 roubles at colonies with a special regime; 3 roubles at prisons with a conventional regime; 2 roubles at prisons with a strict regime; 7 roubles at educational-labour colonies with a conventional regime; and up to 5 roubles at the same colonies with an intensified regime. It is allowed to spend additional money for the same purposes, provided the convicted persons overfulfil their daily quotas or perform their duties in an exemplary manner. Under the general rule, an additional 2 roubles are allowed to be spent. In the case of convicted persons performing heavy work, engaged in unhealthy trade, performing work at correctivelabour establishments located in the Far North and other regions of the same classification, in high-altitude regions or sandy desert, the addi-

tional sum that may be spent is 4 roubles.

Article 24 of the Fundamentals of CorrectiveLabour Law sets the rules for visitors to convicted persons. Short visits of up to 4 hours are held in the presence of the administration of the corrective-labour establishment. Prolonged visits of up to 3 days are allowed only for close relatives who may live together with the convicted person during the allotted time of the visit. Short-term visits are allowed for both close relatives and other persons.

During the year, the convicted persons are allowed 3 short and 2 prolonged visits in a corrective-labour colony with a conventional regime, 2 short and 2 prolonged visits in a colony with an intensified regime, 2 short and 1 prolonged visits in a colony with a strict regime, 2 short visits in a prison (under a conventional regime only), 6 short visits in an educationallabour colony with a conventional regime and 4 short visits in one with an intensified regime.

The inmates of corrective-labour colonies have the right to receive parcels (Article 25 of the Fundamentals of Corrective-Labour Law), but they may exercise this right only after having served at least half the sentence. Under existing regulations, a convicted person is allowed a maximum of 3 parcels a year. The precise number of parcels and their weight is established by the corrective-labour codes depending on the regime of the colony. Convicted persons kept in prisons are not allowed parcels.

According to the corrective-labour codes, the maximum weight of the parcel is 5 kg. Three parcels a year are allowed for an inmate in a corrective-labour colony with a conventional re-

gime, 2 in a colony with an intensified regime, and 1 in a colony with a strict or special regime. The inmates of educational-labour colonies with a conventional regime may receive up to 6 parcels a year, and those in a colony with an intensified regime---up to 4 parcels.

Pregnant women, breast-feeding mothers, juveniles and sick persons who have served half of their sentence are allowed, on the recommendation of a medical commission, to receive additional food parcels (Article 36 of the Fundamentals of Corrective-Labour Law). Under Article 25 of the same Fundamentals, convicted persons are allowed no more than 2 printed matter parcels a year, irrespective of the regime at the colony. They may purchase an unlimited amount of printed matter through the bookstore network.

Convicted persons may send and receive money orders. They are allowed to send money to relatives only. Incoming money orders are placed on the personal account of the convicted person, in open colonies they are handed out in cash.

There are regulations governing the correspondence of convicted persons (Article 26 of the Fundamentals of Corrective-Labour Law). The inmates may receive an unspecified amount of mail, and there are no restrictions on outgoing mail for convicted persons serving sentences in corrective-labour colonies with a conventional regime, open colonies and educational-labour colonies. For all other types of colonies there are certain restrictions for outgoing mail. For instance, convicted persons at corrective-labour colonies with an intensified regime arc allowed to write 3 letters per month, at col-

onies with a strict regime---2 letters, with a special regime---1 letter, at prisons with a conventional regime---1 letter; at prisons with a strict regime---1 letter every 2 months. There is another restriction on mail---convicted persons kept in detention are not allowed to correspond with other convicted persons who are not their relatives.

Article 20 of the Fundamentals of CorrectiveLabour Law provides special conditions for convicted persons kept at open colonies intended for accidental offenders and for other offenders who have been transferred from colonies with a conventional, intensified and strict regimes:

---they are kept under supervision but without guard;

---from rising time to bed time the convicted persons are allowed free movement within the territory of the colony;

---with the permission of the colony administration they may travel unaccompanied outside the colony compound, but only within the boundaries of the region, territory, autonomous or Union republic without regional division, whenever their duties or training require such movements;

---the convicted persons are allowed to wear civilian clothing, to keep money and valuables, and to spend money freely;

---with the permission of the administration and provided housing is available the convicted persons may bring their families to live with them on the territory of the colony, to purchase houses under existing legislation and to acquire household effects.

Convicted men and women may be kept to-

gether in one open colony. In these colonies, convicted persons transferred from colonies with a conventional, intensified and strict regimes may stay together. Such a mixed contingent, containing various categories of convicted persons, is allowed because those who are transferred to open colonies have firmly taken the road of rehabilitation.

Article 24^^1^^ of the Fundamentals of CorrectiveLabour Law makes provision for short-term departure of convicted persons from places of imprisonment for up to 7 days, not counting the time spent in travel (but not more than 5 days), which may be necessitated by extraordinary personal circumstances (the death or grave illness of a close relative, a calamity inflicting substantial losses to the convicted person or his family). Such trips are allowed only those convicted persons, who are kept at correctivelabour colonies with a conventional regime, at open colonies and educational-labour colonies. The travel fare is paid by the convicted person himself or by his relatives. The time thus spent outside the colony is counted as part of the sentence, with no payment due, however. Permission for short leave is granted by the chief administrator of the colony with the approval of the procurator. On receiving permission for short leave, the person is informed of his responsibility for refusing to return to the colony, which is classified as a crime punishable by up to one year's imprisonment (Article 188^^1^^ of the Criminal Code of the Russian Federation) .

Fulfilment of the given regime at a corrective-labour establishment is enforced by a system

of measures of encouragement and penalty. The measures of encouragement, outlined in Article 33 of the Fundamentals of Corrective-Labour Law, fall into 2 categories. Encouragement of the first category, applied for good conduct and honest attitude to work and studies, embraces: ---official commendation;

---putting up of the person's name on the board of front-rank workers;

---award of a certificate of merit; ---bonuses for the best results in work (the money is put on the person's account);

---permission for an additional parcel (the law stipulates that this encouragement is applicable only to those convicted persons who have the right to receive parcels);

---granting of an additional short-term or prolonged visit (the law stipulates that in prisons this encouragement is applied only to convicted persons kept under a conventional regime and only in the form of a short-term visit);

---permission to spend an additional 2 roubles for purchasing foodstuffs and other essentials on holidays; in educational-labour colonies---an additional 2 roubles per month;

---remission of penalty ahead of time (one penalty at a time can be remitted);

---transfer from cell to conventional residential premises of convicted persons who have served at least a third of the sentence in a corrective-labour colony with a special regime;

---more time for daily airing (in a prison with

a conventional regime---up to 2 hours instead

of the standard 1 hour; with a strict regime---

up to 1 hour instead of 30 minutes).

Encouragement of the second category is ap-

plied to convicted persons who have firmly taken the course of reform, and envisages their transfer to other corrective-labour establishments with easier conditions of keeping. The following transfers are practised:

---from a prison into a corrective-labour colony, provided the convicted person has served half the sentence;

---from a corrective-labour colony with a special regime into a colony with a strict regime, provided that the convicted person has served half the sentence;

---from corrective-labour colonies with a conventional, intensified or strict regime into an open colony, provided that the convicted person has served a third of his sentence; in the case of convicted persons who may be conditionally discharged under Article 44 of the Fundamentals of Criminal Law after serving three quarters of their sentence, the transfer is practised after half the sentence has been served; in the case of convicted persons who are not eligible for conditional discharge under Article 44^^1^^ of the Fundamentals of Criminal Law the transfer may be executed after serving two thirds of the sentence.

Another form of encouragement is early conditional discharge of convicted persons who have proved their correction through exemplary conduct and honest attitude to work and education.

The measures of penalty listed in Article 34 of the Fundamentals of Corrective-Labour Law also fall into 2 categories. Penalty of the first category is applied for violations of the regime of imprisonment and embraces the following measures:

---warning or reprimand;

---extra duty to perform the chores in the detention premises or on the territory;

---a single ban on the cinema, concert programme, or sports activities in educational-labour colonies;

---a ban on the coming visit; ---a ban on the coming parcel and a prohibition to purchase foodstuffs for the period of up to one month;

---cancellation of improved conditions of keeping (see further for details);

---confinement of convicted persons kept in corrective-labour colonies to a penalty room for up to 15 days with or without release for work or studies; confinement of those in educationallabour colonies to a disciplinary room for up to 10 days;

---solitary confinement of convicted persons kept in prison to a punishment cell for up to 15 days. There are no bed-clothings in a punishment cell and penalty room and the convicted persons are not allowed airing. During confinement in a punishment cell, penalty room or disciplinary room, the convicted persons are not allowed visits, correspondence, purchase of foodstuffs and other essentials, parcels, printed matter, table games and smoking;

---transfer of convicted persons kept in corrective-labour colonies with a conventional, intensified and strict regimes into cells for a period of up to 6 months; in colonies with a special regime---solitary confinement for a period of up to 1 year; in prisons----introduction of strict regime for a period of from 2 to 6 months; transfer of convicted persons kept in ordinary

premises of colonies with a special regime tb cells within the same colony.

Convicted persons kept in colonies with a conventional, intensified, and strict regimes are transferred into cells and those kept in colonies with a special regime---into solitary confinement cells when other forms of punishment have proved ineffective or when the convicted persons have committed a malicious violation of the regime. These transfers entail cancellation of any improvements in their conditions. In cells of corrective-labour colonies with a conventional, intensified and strict regimes and in solitary confinement cells of special regime colonies, the convicted persons are kept in conditions corresponding to those of a strict regime in prisons. Those confined in cells and in penalty rooms perform their daily work separately from other convicted persons.

A convicted person may be returned from the cell or from solitary confinement before the term of his penalty expires only if the medical commission confirms a deterioration in his health. Pregnant women and mothers with babies cannot be kept in cells, in penalty rooms, in punishment cells in prison or under a strict regime.

Penalty of the second category is applied to convicted persons who maliciously violate the regime, and envisages the following transfers as part of the imprisonment term:

---from an open colony to a corrective-labour colony with the regime stipulated in the court sentence; accidental offenders---into colonies with a conventional regime;

---from a colony with a strict regime into a

colony with a special regime, if the convicted person had been transferred previously from a colony with a special regime;

---from a corrective-labour colony to prison for a maximum period of 3 years, with a provision to serve the remaining sentence in a

colony;

---from an educational-labour colony with a conventional regime into an educational-labour colony with an intensified regime.

Disciplinary action is applied on the basis of the circumstances involved and the conduct of the convicted person prior to misdemeanour. Penalty shall correspond to the gravity and nature of the misdemeanour and is applied within 10 days after the misdemeanour has been registered. Penalty is executed immediately, as a rule, and only in exceptional cases there may be a delay of up to one month.

The convicted person is given the right to appeal against a penalty to a superior administrator. This, however, does not stop execution of

the penalty.

The law establishes a rule for clearing off penalties---if the convicted person is not subjected to fresh penalty within one year after the execution of the first one, his record is considered to be clear of penalty (Article 34 of the Fundamentals of Corrective-Labour Law).

In view of the system of changing conditions for keeping convicted persons, which is outlined in Article 22 of the Fundamentals of Corrective-Labour Law, there arises the question of whether this system is not similar to the well-known progressive system. The latter is applied (a) with the purpose of placing the con-

victed person in such condilioiis which would stimulate his own desire to reform and (b) preparing him for life at large, so that the transition from detention to freedom would not he so contrasting and would he devoid of a negative reaction on the part of the convicted person. The progressive system embraces a set of rules according to which the conditions for keeping convicted persons are changed depending on their conduct---the worse the conduct, the stricter the conditions, and, conversely, the better the conduct, the easier the conditions.

The progressive system possesses both good and bad sides. The positive element in it is that it provides the convicted person a very vivid and tangible illustration of the beneficial results of reform. Under the progressive system, correction is ``purchased'', as it were, from the convicted person, because for good conduct the person is paid by improved conditions of keeping. This factor may lead to aggravation of egoism, servility, toadyism, and time-serving.

The change of conditions for keeping convicted persons is a specific form of the progressive system. In Soviet corrective-labour establishments this practice mitigates to the minimum the negative features of the progressive system. This is because the Soviet corrective-labour law, recognizing both the rights and the duties of convicted persons, only alters their legal status, but does not ``purchase'' proper conduct for some kind of privileges. Besides, the procedure for changing the conditions of keeping convicted persons in Soviet corrective-labour establishments is such which guarantees against obtain-

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ing any rights through servility. This is because the decision to change conditions of keeping is taken not by one person, but by a commission chaired by the chief administrator of the corrective-labour establishment and comprising representatives of all the basic services (the guard, the supervisors, the juridical, medical, production and other personnel). The change of conditions is not the only method of correcting and re-educating convicted persons, and it is merely a means of ensuring the most effective realization of all the punitive and educational measures of influencing convicted persons.

In Soviet corrective-labour establishments the progressive system is practised in a specific form---it provides for a mixed procedure of changing conditions, with or without transfer from one corrective-labour establishment to another. The conditions of keeping the convicted person are changed mainly by changing their legal status while retaining them in the same corrective-labour establishment.

The provisions of corrective-labour codes of the Union republics include a rule according to which improvement of conditions for convicted persons at corrective-labour and educational-- labour colonies incorporates permission to spend additional money during the month (in excess of the standard sum) and to have one or more additional visits during the year. In practical terms, improved conditions mean the granting of the following rights to the convicted persons: ---in a corrective-labour colony with a conventional regime---to spend up to 4 roubles a month for purchasing foodstuffs and other essentials, plus one prolonged visit or, in the ab-

sence of close relatives, one short visit a year;

---in a corrective-labour colony with an intensified regime---3 roubles a month and one prolonged (or short) visit a year;

---in a corrective-labour colony with a strict regime---2 roubles a month and one prolonged (or short) visit a year;

---in a corrective-labour colony with a special regime---1 rouble a month and one prolonged (or short) visit a year.

The above-mentioned improved conditions are granted after the convicted person has served at least half the sentence.

In educational-labour colonies there is a different procedure under which the convicted persons are granted the right:

---in an educational-labour colony with a conventional regime, after serving a quarter of the sentence---to spend an additional 3 roubles a month and to have 2 additional short visits during the year.

---in an educational-labour colony with an intensified regime, after serving a third of the sentence---to spend an additional 2 roubles a month and to have 2 additional short visits during the year.

In prisons, only those convicted persons are granted improved conditions who have served at least half of their sentence under a conventional regime. They are allowed to spend an additional one rouble a month for the purchase of foodstuffs and other essentials.

Persons subjected to imprisonment before trial are not eligible for changes in the conditions of keeping. Nevertheless, the existing rules on imprisonment before trial provide for measures

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