EARLY CONDITIONAL RELEASE FROM JAIL
Conditional early release from punishment- the termination of the execution of criminal punishment related to the achievement of its purposes, before serving the full sentence, with the establishment of the probationary period for the person being released, during which it must prove its correction. Violation of the conditions of the probationary period leads to the resumption of the execution of the appointed punishment.
For the first time, parole was granted in France in 1885. Since then, this institution has been perceived by legal systems (criminal or criminal procedural legislation) practically in all countries of the world. Its application is a manifestation of humanism and is aimed at encouraging convicts to correct and re-educate, as well as maintaining order in correctional institutions.
In most countries of the world, conditional early release is possible only from punishments related to the deprivation of liberty of a convicted person, however, in some national legal systems (in particular, the states of the post-Soviet space), its application to convicts who are serving correctional labor, restrictions on military service, Content in the disciplinary military unit, etc.
The conditional early release from punishment can be complete or partial. With full release, the convicted person is released from both the main and additional punishment if appointed. With partial exemption, the execution of additional punishment continues
According to the first point of view, conditional early release is one of the stages of execution of punishment. Thus, in the branded, or stellar progressive system of serving the deprivation of liberty that existed in Australia in the first half of the nineteenth century, a legal regime similar to parole was established for the final stage of serving the sentence, which was preceded by solitary confinement and joint imprisonment. For this last stage, there were significant restrictions on the rights and freedoms of convicts and increased supervision of them. In such a system, parole is in effect the continuation of the punishment imposed.
According to another point of view, parole is actually a change in the court’s verdict [4]. Other authors note that the change in the sentence of the court can be carried out only in a special procedural order and a higher court, and the issue of conditional early release is decided by the court of the same level as the verdict was pronounced, and that “parole is not Shakes the stability of the sentence. “
According to another opinion, conditional early release from punishment “consists in the early termination of the serving of the sentence, provided that the requirements that were restored during the trial period are restored”
Conditional early release from punishment can also be considered as a subjective right convicted] or one of the types of criminal law incentives.
Grounds for parole
Legislation in most countries of the world associates parole with two circumstances: the achievement of the goals of punishment (material criterion) and the serving of the sentenced part of the appointed term of punishment (formal criterion). At the same time, in most cases, the release is not based on purely formal grounds, but on the personality and behavior of the particular convicted person.
Achieving the goals of punishment
Although the principle of the economy of criminal repression requires that the punishment imposed by the court is minimal enough to correct the convict, in reality it can be very difficult to predict its impact on a particular convicted person. Even if the court fully takes into account all the objective factors related to both the committed deed and the person of the offender, this does not guarantee the choice of the best punishment in terms of its corrective effect [7]. In addition, the identity of the convict changes during the execution of punishment, and not always such changes are negative. Often even before the time of full serving of punishment, its goals are fully or partially achieved
In the legislation of different countries, there are many formulations of the material criterion of conditional early release
No need to serve the full term of punishment (the state of the post-Soviet space);
The existence of grounds to assume that a person will not commit new crimes and without further serving a sentence (Austria, Germany, Paraguay);
Good behavior, indicating the inexpediency of further punishment (England);
Re-education of the convict (Albania);
Adherence to the regime of detention, the perception of educational measures, sincere repentance (PRC);
Positive opinion of the competent authority on the good conduct of the convict and the ability to observe the restrictions imposed during the probation period (some US states);
Good reasons to believe that the convict reached social rehabilitation (France);
Genuine correction of the convict (Japan).
In general, there are four approaches to the evaluation of the material criterion. First, an integrated assessment of the personality and behavior of the convict (Germany, Estonia, Poland) may be required. The account is subject to various circumstances related to the characterization of the person of the convict (moral character, characteristics and qualities), his behavior preceding the commission of the crime, the circumstances of the crime, the behavior of the convicted person during the execution of punishment, the conditions of his life and the alleged behavior after release.
Secondly, the primary attention can be paid to the prospects for integration of the convict into the society and its further law-abiding behavior. In Spain, the basis for the release is the positive forecast of the social rehabilitation of the convict, drawn up by the experts of the Oversight Court. In the United States before the hearing of the case for early release, the convicted person draws up a plan for future social rehabilitation, including information on alleged social contacts, work and other activities, and lifestyle.
Thirdly, the accent can be made on ascertaining the fact of the convict’s good behavior during the serving of punishment (Argentina, Belarus, Bulgaria, Tajikistan, Uzbekistan, Russia, Ukraine, Philippines). The criterion of good behavior can be the implementation of internal regulations of the correctional institution (Argentina), the approximate behavior of a person (Belarus), conscientious attitude to work and compliance with the requirements of the regime (Bulgaria, Tajikistan, Uzbekistan, Ukraine).
Finally, the legislation of some countries contains a presumption that the convicted person should be corrected after serving a certain part of the sentence, which must be refuted by concrete facts that give grounds for believing that the correction of the convict has not been achieved. In Austria, the basis for refusing release after serving 2/3 of the sentence is the existence of grounds for suspecting new offenses after release, and in Sweden – gross violations of the order of serving the sentence.
Actual serving of part of punishment
The minimum period that a person must depart to enable his parole is possible varies from country to country and amounts to:
1/3 of the sentence established by the court in England, Belgium, Croatia, the Republic of Korea, Japan;
1/2 of the sentence in Austria, Albania, Bulgaria, China, Portugal, Slovakia, France, Czech Republic;
2/3 of the sentence in Bolivia, Panama, Paraguay; In Germany, Denmark, Iceland (in special cases after serving a half-term); 3/4 of the sentence in Spain (in special cases after 2/3 of the term).
The amount of the term can be determined differentially, depending on the circumstances connected with the committed crime, the appointed punishment or the person of the convict.
So, many codes of the countries of the post-Soviet space put a term that is actually required to depart, depending on the category of committed crime. So, according to the Criminal Code of the Russian Federation, it is required to serve at least 1/3 of the punishment for a crime of small and medium gravity, 1/2 penalty for a serious crime, 2/3 of punishment for a particularly serious crime. In addition, for certain types of crimes of the Criminal Code of the Russian Federation (for example, against the sexual inviolability of minors and crimes of a terrorist nature), too, the time limits that are required to be served are 3/4 or even 4/5 of the punishment imposed.
The circumstances connected with the appointed punishment are provided, for example, by the CC of Argentina. If a person is convicted of hard labor or imprisonment for more than three years, actual serving of 2/3 of the sentence is required, if the term is less than three years, then it is necessary to actually serve 8 months in prison or 1 year of hard labor.
The circumstances connected with the person of the convict can both reduce and increase the term of punishment to be served. Thus, the Criminal Code of the Federation of Bosnia and Herzegovina, as well as of Macedonia, stipulate a reduction of the term from 1/2 to 1/3 of the one appointed, subject to special circumstances, concerning the identity of the convicted person. The Criminal Code of France, on the contrary, provides for an increase in this period from 1/2 to 2/3 of that prescribed for recidivists.
A special system for calculating the terms to be served exists in the United States, where indeterminate sentences are widespread. In this case, the minimum period to be served is determined by the court’s verdict, and in the absence of a minimum determined by the court, a certain percentage of the maximum sentence is subject to serving. In this case, the exemption from serving the sentence is unconditional, although in its essence this institution is similar to parole.
To prevent accidental release, in the absence of actual achievement of the purposes of punishment, the minimum absolute period of punishment that must be served for obtaining the right to parole is also established. In Sweden it is 1 month, in Hungary, Germany, Denmark – 2 months, in Austria, Senegal – 3 months, in the post-Soviet countries, Poland, Portugal – 6 months; In Italy – 30 months.
Probation
The conditional nature of early release is connected with the possibility of its cancellation within a certain period, if the convicted person commits a new crime or will shirk from performing other duties connected with his re-socialization.
Usually the probation period is associated with the term of the unexpired part of the punishment (post-Soviet countries, Bulgaria, Hungary, PRC, Republic of Korea, Sweden, Estonia), but it can be specified in legislation (from 1 to 5 years in Austria and Switzerland, 2 to 5 years in Poland, up to 5 years in Denmark and Iceland).
The increase in the probationary period may be due to various circumstances. For example, in Austria, the presence of mental abnormalities or the recurrence of crimes in an exempted offender entails the establishment of a probation period of 10 years.
As a rule, the discharged person is subject to duties related to his resocialization, similar to those used for conditional conviction or probation
The commission of a new crime or other violation of the conditions of liberation usually entails the abolition of liberation. Depending on the severity of the violation, such cancellation may be unconditional or subject to the discretion of the court or other competent authority.
Categories of persons not subject to early release
With regard to certain categories of persons, parole can not be applied because of their special social danger of the committed act, or the presumption that it is impossible to correct them due to antisocial attitudes that they have formed.
So, with a simple relapse of crime, the ban on the liberation of UK Albania, Argentina, Hungary, with a dangerous relapse – the Criminal Code of Lithuania, Bulgaria, with the most dangerous – Kyrgyzstan, Tajikistan, Turkmenistan. In the PRC parole can not be applied to people who have committed murder, an explosion, robbery, rape, other violent crimes, as well as to recidivists who have been sentenced to imprisonment for more than 10 years. Under the Criminal Code of Uzbekistan, a person who has been replaced by deprivation of liberty by way of pardon can not be released; Especially dangerous recidivist; Organizer and members of a criminal community or an organized group; Persons convicted of murder with aggravating circumstances, rape, state and some other particularly serious crimes.
Special conditions, as a rule, are envisaged for convicts, who were earlier released on parole. If conditional early release has been canceled, in some countries it can not be used at all (Argentina), or it can be used after serving an increased share of the term of punishment (the countries of the post-Soviet space). It is not allowed to re-conditional early release in Bulgaria and Bolivia.
For specific categories of persons, special conditions for release may be provided. So, according to the Criminal Code of the Russian Federation, when examining an application for conditional early release from serving a sentence of a convicted person for a crime against the sexual inviolability of a minor who has not reached the age of fourteen, the court takes into account the results of forensic psychiatric examination of such a convicted person
Early release from life imprisonment
In most countries that apply punishment in the form of life imprisonment, parole can be granted on parole. As a rule, it is associated with the actual serving of long sentences (Chile – 40 years, some US states – 35 years, Philippines, Cuba, Estonia – 30 years, Russia, Azerbaijan, Latvia – 25 years, France – 18 years or 22 years; Argentina, Hungary, Italy, Romania – 20 years old, Austria, Germany, Switzerland – 15 years, China, Japan – 10 years), as well as the lawful behavior of a person during the serving of punishment.
Conditional early release from punishment in the Russian law
Similar to the conditionally early release from punishment, practice appeared in Russia in Art. 300 Charter of the exiles. The convicts who gave hope for a “correction that showed obedience to their superiors, abstinence, neatness and diligence” received substantial indulgences in the regime of serving their sentence: the opportunity to live outside the prison, to build a house and to marry. [14] Also, in fact, from the middle of the 19th century, persons who served their sentences in correctional shelters after the actual execution of 2/3 of the sentence were released from further serving their sentence with the condition of returning to the shelter “in case of bad behavior.”
June 22, 1909, the law “On parole”, which finally consolidated this practice in the criminal law of Russia, was passed. It continued to be applied also in the post-revolutionary period on the basis of the Decree on court No. 1. It was also figured in the newly adopted acts of criminal legislation. Conditional early release was not applied since 1939 and was reintroduced only by the Decree of the Presidium of the Supreme Soviet of the USSR of July 14, 1954 “On the introduction of parole from prisons.”
Current legislature
If a person serving a sentence of imprisonment, forced labor or kept in a disciplinary military unit prior to the full serving of the term of punishment prescribed to him, will be recognized by the court as not requiring further punishment serving for his correction, he may be released on parole.
The question of the need for a full correction of the convict for his release is controversial. On the one hand, Art. 175 of the PEC of the Russian Federation requires the submission of information to the court that testifies to the correction of the convicted person. On the other hand, the Criminal Code of the Russian Federation does not contain a requirement specifically to achieve a correction by the time of release: it is only necessary to drop the need for further serving of punishment. Evidence of sufficient correction may be full or partial compensation to the victim, repentance in the deed, compliance with the regime of serving punishment, responsible attitude to work or study, relationships with other convicts and relatives, etc.
Parole can be revoked, and the convicted person is returned to serve the remaining term of punishment if he violates the public order, angrily evades fulfillment of the duties or compulsory medical measures imposed on him by the court, committed a crime or an administrative offense (Part 7, Article 79 CC RF).
Before the convicted person is given the opportunity to apply for conditional early release, he must actually serve part of the sentence:
Not less than ⅓ the term of punishment, appointed for a crime of small or medium gravity;
Not less than ½ of the term of punishment for a serious crime;
Not less than ⅔ the term of punishment for a particularly serious crime;
At least 25 years, if the person is serving a life imprisonment;
At least three fourths of the term of punishment imposed for crimes against the sexual inviolability of minors for serious and particularly serious crimes related to the illicit traffic in narcotic drugs, psychotropic substances and their precursors, as well as for crimes provided for in articles 205, 205.1 and 210 of the Criminal Code of the Russian Federation ( Respectively, terrorism, the promotion of terrorist activities and the organization of the criminal community and participation in it);
At least four fifths of the term of punishment imposed for crimes against the sexual inviolability of minors under the age of fourteen. In this case, the court also takes into account the results of forensic psychiatric examination with respect to such a convicted person. The exempted can be imposed duties, contributing to its correction, which must be fulfilled during the remaining term of punishment. These may be duties: do not change the permanent place of residence, work, study without notification to a specialized state body that monitors the behavior of the conditionally convicted person, do not attend certain places, undergo treatment for alcoholism, drug addiction, substance abuse or sexually transmitted disease, work (work) or Continue education in the general education institution, as well as other appointed by the court.
Control over the behavior of the released, in particular, for the execution of the duties assigned to them, is carried out by the penal executive inspectorates, and in respect of the servicemen – by the command of military units and institutions.
A person serving a life imprisonment may be released on parole if the court finds that he does not need to continue serving this punishment and in fact has served at least twenty-five years in prison. The conditional early release from further serving of life imprisonment is applied only in the absence of malicious violations of the established order of serving punishment during previous 3 years.A person who committed a new serious or especially serious crime while serving a life imprisonment is not eligible for early parole.
INFORMATION FOR THIS ARTICLE ORIGINALLY TRANSLATED FROM WWW.RU.WIKIPEDIA.ORG
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