Who cannot be deprived of freedom?
Restriction of freedom is not imposed on military personnel, foreign citizens, stateless persons, as well as persons who do not have a place of permanent residence in the territory of the Russian Federation.
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Peculiarities of criminal liability and punishment of women under current legislation
The enshrinement in Article 38 of the Constitution of the Russian Federation of the provision on the support and protection of the family, its state protection, is an indicator that modern Russia is interested in strengthening and preserving the family as a social structure that is capable of performing various important social functions. The function of the state in terms of caring for the family and minors is not diminished even in a situation where its (the family’s) very existence is threatened due to the emergence of criminal legal relations between women who commit crimes.
Issues of criminal liability and punishment, as well as the legal regulation of sentencing for women who have committed crimes, do not find their own independent support in the current legislation. Due to this conclusion, the institution of criminal liability and penal legal application can only be studied by analyzing individual institutions, or special conditions for assigning and serving sentences.
In accordance with the current criminal legislation (Article 44 of the Criminal Code of the Russian Federation), from the entire list of punishments against a woman, the following cannot be applied: forced labor; life imprisonment and death penalty[234]. The death penalty was not applied to women under Soviet criminal law either. At the same time, political motives in certain situations prevailed over the interests of Soviet justice [235].
In addition, the use of certain types of criminal penalties is limited by connections with the social and physiological state of the woman at the time of the court verdict. Thus, the following types of criminal penalties cannot be imposed on pregnant women and women with children under three years of age:
1) compulsory work (clause 4 of article 49 of the Criminal Code of the Russian Federation);
2) corrective labor (clause 5, article 50 of the Criminal Code of the Russian Federation[236]);
3) forced labor (clause 7 of article 53.1 of the Criminal Code of the Russian Federation);
4) arrest (clause 2 of article 54 of the Criminal Code of the Russian Federation).
A woman’s pregnancy or the presence of young children (clause c, art. 61 of the Criminal Code) is considered as a mitigating circumstance.
Increased legal protection for women who are pregnant and subjected to criminal influence is expressed by the fact that this condition is considered as an aggravating circumstance (clause 1 of Article 63 of the Criminal Code). The same condition of the victim is recognized as a qualifying feature that significantly increases the degree of responsibility for committing a specific crime (clause “d” of Part 2 of Article 105; Part 1 of Article 111, etc.).
A special attitude towards women who have committed crimes is also expressed by the provisions related to the type of correctional institutions in which they must serve their sentences of imprisonment. There is no direct provision for the types of correctional institutions for women in criminal legislation; therefore, clarification of this issue is possible through a logical analysis of Art. 58 of the Criminal Code. Thus, women who have committed crimes can be assigned only two types of correctional institutions to serve a criminal sentence in the form of imprisonment - settlement colonies and general regime correctional colonies. This legislative setting, on the one hand, indicates a certain lenient attitude towards women (maximum and special regime colonies and prisons are not assigned) - on the other hand, the operation of the basic principle of penal legislation, the principle of differentiation and individualization of execution of punishment, is practically excluded. According to the current legislation, general regime correctional colonies simultaneously house women convicted of recidivism, dangerous and especially dangerous recidivism of crimes and those sentenced to imprisonment for the first time, including for crimes committed through negligence. It seems, in this regard, that a return to high-security correctional colonies for women[237] is currently appropriate and in demand.
A direct expression of the legislator's special attitude to the issues of criminal liability of women is the introduction into criminal legislation of deferment of serving sentences. The type of exemption in question has existed in Russia since 1992. and during this time it has proven its effectiveness. The legal nature of deferment of serving sentences for pregnant women and women with young children in 2001 (further in 2010 and 2012) has undergone significant changes. Thus, the legislator raised the age limit of a child to fourteen years, and also provided for the release of the convicted woman from serving her sentence or the replacement of the remaining part of the sentence with a more lenient one when the child reaches the specified age. Return to prison to serve the remainder of the sentence, as was the case before, is not provided[238]. In accordance with the law (Article 82 of the Criminal Code of the Russian Federation), pregnant women and women with young children are granted a deferment of serving their sentence until the child reaches the age of fourteen. Such a court decision cannot apply to women sentenced to imprisonment for a term of more than five years for grave and especially grave crimes against the person.
In addition to women, a deferment is also provided to men who have a child under the age of fourteen and are a single parent,
The requirements of Article 82 do not apply to those sentenced to restriction of freedom or imprisonment for crimes against the sexual integrity of minors under fourteen years of age (Federal Law No. 270-FZ of February 29, 2012).
In the event that the convicted woman (convict) has abandoned the child or is avoiding raising him, the court has the right to cancel the deferment of serving the sentence and send the convicted woman to serve the sentence in a place designated in accordance with the sentence. This decision is applied after an official warning issued by the body exercising control over the behavior of the convicted person. When the child reaches the age of fourteen, the court releases the convicted person from serving the remaining part of the sentence, with the criminal record expunged, or replaces the remaining part with a more lenient punishment.
Provided that, upon the child reaching fourteen years of age, a period equal to the term of the sentence, the serving of which was suspended, has expired, and the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence was suspended, has come to the conclusion that the convicted person has complied with the conditions of the deferment and his correction , the court has the right to make one of the following procedural decisions;
1) reduce the period of deferment of serving the sentence;
2) release the convicted person from serving the sentence or the remaining part thereof with the criminal record expunged.
If, during the period of deferment of serving the sentence, the convicted person commits a new crime, the court assigns her (him) a punishment according to the rules of Art. 70 of the Criminal Code of the Russian Federation.
The legislator, guided by the results of the application of this type of exemption in practice and the principle of humanism, decided not only to preserve it in the new Criminal Code, but also to expand the scope of its application.
If previously such an exemption applied to women with children under the age of three, now this exemption will apply, if there are appropriate grounds, to women with children under the age of fourteen.
In addition, the law somewhat facilitated the completion of the probationary period for women, excluding violation of public order as a basis for canceling the deferment, based on the fact that such violations were practically never encountered in judicial practice. The legislator calls the commented norm a deferment of serving a sentence. The basis for such a delay is the interests of the child. Therefore, when applying this rule, the court must have evidence that a pregnant woman (man) or mother (father), taking into account the nature of the crime committed, her personality, attitude to alcohol and drugs and other circumstances, can really provide the child with the care and education required which he needs, especially in the first years of life.
The law provides for a long deferment period: for women with children, it is calculated until the child reaches the age of fourteen, and for pregnant women this period is even longer: it includes the time of maternity leave provided for by Russian legislation.
If the probationary period was not interrupted, then when the child reaches the age of fourteen, the court returns to deciding the fate of the woman (man) whose sentence was suspended. But before making a decision, the court must check whether the statute of limitations for the conviction, provided for in Art. 83 of the Criminal Code, - two years if a woman (man) is convicted of a crime of minor gravity, six years - if convicted of a crime of medium gravity, etc.
If the statute of limitations on the conviction has not expired, the court has the right to:
a) release the woman completely from serving the sentence imposed by the court for committing a crime;
b) replace the imposed punishment with a more lenient one, choosing it in accordance with the list provided for in Art. 44, and in the amounts determined by the relevant article of the General Part of the Criminal Code;
c) send the convicted woman to serve the sentence assigned to her if her behavior indicates that she did not justify humane treatment of her and the provision of a deferment of serving the sentence.
In addition to the above provisions of the Criminal Code of the Russian Federation, humane treatment of women is also expressed in the form of acts of amnesty and pardon. Legislative decisions related to amnesty, as a rule, consider women, women with young children, minors, war participants and veterans as subjects subject to release from serving sentences.
A problematic issue to this day remains the issue of separating convicted women with persistent criminal behavior (convicted for all types of recidivism) and other convicts, correctional influence on whom is still possible and desirable. It is fair in this regard, as N.S. once noted. Tagantsev: “Staying, even for several days, in the same place where notorious criminals are housed corrupts (if kept together) the prisoners[239].
Taking into account the peculiarities of criminal liability and punishment of women, it seems appropriate and necessary to introduce a special section 5.1 “Criminal liability of women” into the Criminal Code of the Russian Federation. The proposed section should define all legal provisions governing this institution.
A similar section, which should regulate issues of execution of punishment against women, must be introduced into the Criminal Executive Code of the Russian Federation.
In order to prevent relapse of crimes (penitentiary recidivism), institutions intended for convicted women to serve criminal sentences in the form of imprisonment should include correctional colonies of two regime types:
1) general regime correctional colonies;
2) high-security correctional colonies.
The enshrinement in Article 38 of the Constitution of the Russian Federation of the provision on the support and protection of the family, its state protection, is an indicator that modern Russia is interested in strengthening and preserving the family as a social structure that is capable of performing various important social functions. The function of the state in terms of caring for the family and minors is not diminished even in a situation where its (the family’s) very existence is threatened due to the emergence of criminal legal relations between women who commit crimes.
Issues of criminal liability and punishment, as well as the legal regulation of sentencing for women who have committed crimes, do not find their own independent support in the current legislation. Due to this conclusion, the institution of criminal liability and penal legal application can only be studied by analyzing individual institutions, or special conditions for assigning and serving sentences.
In accordance with the current criminal legislation (Article 44 of the Criminal Code of the Russian Federation), from the entire list of punishments against a woman, the following cannot be applied: forced labor; life imprisonment and death penalty[234]. The death penalty was not applied to women under Soviet criminal law either. At the same time, political motives in certain situations prevailed over the interests of Soviet justice [235].
In addition, the use of certain types of criminal penalties is limited by connections with the social and physiological state of the woman at the time of the court verdict. Thus, the following types of criminal penalties cannot be imposed on pregnant women and women with children under three years of age:
1) compulsory work (clause 4 of article 49 of the Criminal Code of the Russian Federation);
2) corrective labor (clause 5, article 50 of the Criminal Code of the Russian Federation[236]);
3) forced labor (clause 7 of article 53.1 of the Criminal Code of the Russian Federation);
4) arrest (clause 2 of article 54 of the Criminal Code of the Russian Federation).
A woman’s pregnancy or the presence of young children (clause c, art. 61 of the Criminal Code) is considered as a mitigating circumstance.
Increased legal protection for women who are pregnant and subjected to criminal influence is expressed by the fact that this condition is considered as an aggravating circumstance (clause 1 of Article 63 of the Criminal Code). The same condition of the victim is recognized as a qualifying feature that significantly increases the degree of responsibility for committing a specific crime (clause “d” of Part 2 of Article 105; Part 1 of Article 111, etc.).
A special attitude towards women who have committed crimes is also expressed by the provisions related to the type of correctional institutions in which they must serve their sentences of imprisonment. There is no direct provision for the types of correctional institutions for women in criminal legislation; therefore, clarification of this issue is possible through a logical analysis of Art. 58 of the Criminal Code. Thus, women who have committed crimes can be assigned only two types of correctional institutions to serve a criminal sentence in the form of imprisonment - settlement colonies and general regime correctional colonies. This legislative setting, on the one hand, indicates a certain lenient attitude towards women (maximum and special regime colonies and prisons are not assigned) - on the other hand, the operation of the basic principle of penal legislation, the principle of differentiation and individualization of execution of punishment, is practically excluded. According to the current legislation, general regime correctional colonies simultaneously house women convicted of recidivism, dangerous and especially dangerous recidivism of crimes and those sentenced to imprisonment for the first time, including for crimes committed through negligence. It seems, in this regard, that a return to high-security correctional colonies for women[237] is currently appropriate and in demand.
A direct expression of the legislator's special attitude to the issues of criminal liability of women is the introduction into criminal legislation of deferment of serving sentences. The type of exemption in question has existed in Russia since 1992. and during this time it has proven its effectiveness. The legal nature of deferment of serving sentences for pregnant women and women with young children in 2001 (further in 2010 and 2012) has undergone significant changes. Thus, the legislator raised the age limit of a child to fourteen years, and also provided for the release of the convicted woman from serving her sentence or the replacement of the remaining part of the sentence with a more lenient one when the child reaches the specified age. Return to prison to serve the remainder of the sentence, as was the case before, is not provided[238]. In accordance with the law (Article 82 of the Criminal Code of the Russian Federation), pregnant women and women with young children are granted a deferment of serving their sentence until the child reaches the age of fourteen. Such a court decision cannot apply to women sentenced to imprisonment for a term of more than five years for grave and especially grave crimes against the person.
In addition to women, a deferment is also provided to men who have a child under the age of fourteen and are a single parent,
The requirements of Article 82 do not apply to those sentenced to restriction of freedom or imprisonment for crimes against the sexual integrity of minors under fourteen years of age (Federal Law No. 270-FZ of February 29, 2012).
In the event that the convicted woman (convict) has abandoned the child or is avoiding raising him, the court has the right to cancel the deferment of serving the sentence and send the convicted woman to serve the sentence in a place designated in accordance with the sentence. This decision is applied after an official warning issued by the body exercising control over the behavior of the convicted person. When the child reaches the age of fourteen, the court releases the convicted person from serving the remaining part of the sentence, with the criminal record expunged, or replaces the remaining part with a more lenient punishment.
Provided that, upon the child reaching fourteen years of age, a period equal to the term of the sentence, the serving of which was suspended, has expired, and the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence was suspended, has come to the conclusion that the convicted person has complied with the conditions of the deferment and his correction , the court has the right to make one of the following procedural decisions;
1) reduce the period of deferment of serving the sentence;
2) release the convicted person from serving the sentence or the remaining part thereof with the criminal record expunged.
If, during the period of deferment of serving the sentence, the convicted person commits a new crime, the court assigns her (him) a punishment according to the rules of Art. 70 of the Criminal Code of the Russian Federation.
The legislator, guided by the results of the application of this type of exemption in practice and the principle of humanism, decided not only to preserve it in the new Criminal Code, but also to expand the scope of its application.
If previously such an exemption applied to women with children under the age of three, now this exemption will apply, if there are appropriate grounds, to women with children under the age of fourteen.
In addition, the law somewhat facilitated the completion of the probationary period for women, excluding violation of public order as a basis for canceling the deferment, based on the fact that such violations were practically never encountered in judicial practice. The legislator calls the commented norm a deferment of serving a sentence. The basis for such a delay is the interests of the child. Therefore, when applying this rule, the court must have evidence that a pregnant woman (man) or mother (father), taking into account the nature of the crime committed, her personality, attitude to alcohol and drugs and other circumstances, can really provide the child with the care and education required which he needs, especially in the first years of life.
The law provides for a long deferment period: for women with children, it is calculated until the child reaches the age of fourteen, and for pregnant women this period is even longer: it includes the time of maternity leave provided for by Russian legislation.
If the probationary period was not interrupted, then when the child reaches the age of fourteen, the court returns to deciding the fate of the woman (man) whose sentence was suspended. But before making a decision, the court must check whether the statute of limitations for the conviction, provided for in Art. 83 of the Criminal Code, - two years if a woman (man) is convicted of a crime of minor gravity, six years - if convicted of a crime of medium gravity, etc.
If the statute of limitations on the conviction has not expired, the court has the right to:
a) release the woman completely from serving the sentence imposed by the court for committing a crime;
b) replace the imposed punishment with a more lenient one, choosing it in accordance with the list provided for in Art. 44, and in the amounts determined by the relevant article of the General Part of the Criminal Code;
c) send the convicted woman to serve the sentence assigned to her if her behavior indicates that she did not justify humane treatment of her and the provision of a deferment of serving the sentence.
In addition to the above provisions of the Criminal Code of the Russian Federation, humane treatment of women is also expressed in the form of acts of amnesty and pardon. Legislative decisions related to amnesty, as a rule, consider women, women with young children, minors, war participants and veterans as subjects subject to release from serving sentences.
A problematic issue to this day remains the issue of separating convicted women with persistent criminal behavior (convicted for all types of recidivism) and other convicts, correctional influence on whom is still possible and desirable. It is fair in this regard, as N.S. once noted. Tagantsev: “Staying, even for several days, in the same place where notorious criminals are housed corrupts (if kept together) the prisoners[239].
Taking into account the peculiarities of criminal liability and punishment of women, it seems appropriate and necessary to introduce a special section 5.1 “Criminal liability of women” into the Criminal Code of the Russian Federation. The proposed section should define all legal provisions governing this institution.
A similar section, which should regulate issues of execution of punishment against women, must be introduced into the Criminal Executive Code of the Russian Federation.
In order to prevent relapse of crimes (penitentiary recidivism), institutions intended for convicted women to serve criminal sentences in the form of imprisonment should include correctional colonies of two regime types:
1) general regime correctional colonies;
2) high-security correctional colonies.
Sanctions
Art. 127 of the Criminal Code of the Russian Federation indicates that a certain punishment is provided for illegally detaining a person against his will in any premises or building. Thus, under the first part of this article, the attacker faces:
- restriction of freedom for a period of up to two years;
- forced labor for the same period of time;
- arrest from three to six months;
- isolation from society for up to two years.
These sanctions are quite serious. In addition, punishment is imposed on the perpetrator even if he thus wanted to joke with the victim, without pursuing a specific intent to harm him.
The crime can be committed:
- by several people in a pre-planned conspiracy;
- in relation to a teenager or a woman in a situation (which the perpetrator knew about);
- with the use of weapons or violence, cruelty;
- against two or more people.
Those found guilty may face punishment of forced labor for up to 5 years or a prison sentence of three to five years. These sanctions are prescribed in Art. 127 of the Criminal Code of the Russian Federation
If these acts were committed by an organized criminal group or resulted in the careless death of the victim, then the punishment here will only be in the form of isolation from society for a period of four to eight years.
Pre-trial detention center for women - what is it?
A pre-trial detention center stands for a pre-trial detention center in which there are persons under investigation, namely, those people whose criminal case is under investigation or legal proceedings and who are awaiting further distribution to a correctional institution or colony.
All other institutions of this type in Russia are mixed, where both men and women serve their sentences. Unlike some men’s detention centers, where certain “concepts” may apply in everyday life, for women everything is simpler and relatively freer. The main attention is paid to everyday life and the distribution of responsibilities between cellmates.
The most stringent correctional MLS
Moscow pre-trial detention center No. 6 is considered one of the most brutal prisons. The prisoners themselves call it nothing more than “SIZO 666”, since the conditions of detention can be called hellish.
Attention! More stringent conditions are observed in colonies where women who have committed repeated and serious crimes are sent, i.e. repeat offenders.
Lack of sleeping places, overcrowded cells and unsanitary conditions. Diseases such as tuberculosis and syphilis flourish as a result of the lack of medical care and basic living conditions. A completely healthy, and sometimes innocent, person emerges sick and exhausted a few months later. Activists and human rights defenders are sounding the alarm, however, to no avail.
Correctional colonies in Mordovia are often mentioned as places where it is better not to go. These institutions are classified as high security detention centers. Their conditions are much worse compared to other similar places of detention. The arbitrariness of the authorities, dirt and meager food are just a few of the things that those serving sentences on the territory of these institutions will have to face.
- IK-13 and IK-14, located in the village of Partsa.
- IK-2 in the village of Java.
