Rossiyskaya gazeta is the official organ of the government of the Russian Federation, so you can safely assume that anything printed in it represents the official party line. Below we offer our exclusive translation of a recent opinion piece, in which a retired senior Russian Supreme Court judge discusses the social ramifications of the fact that one quarter of Russian males have been through the prison system, and offers solutions that sound suspiciously liberal, although he quickly backtracks and insists that they are actually quite the opposite. Our translator has intentionally tried to preserve the heavy-handed Soviet linguistic style of the original. Of particular interest is the introduction, which may very well have been added recently, after the rest of the article was written, since it reeks so heavily of the current party line. What are the most important reasons why a large number of prisoners and ex-cons is bad for the “social structure” of the motherland? The surprising answer is that lots of prisoners mean a lower birthrate, since people are prevented from reproducing while behind bars, while persons with criminal records are prohibited from serving in the Russian military, so the more ex-cons you’ve got, the smaller your pool of cannon fodder for your latest expansionist adventure. Josef Stalin didn’t have such qualms – he simply sent zeks straight to the front during the Great Patriotic War (1941-1945). Sitting pretty Nearly a quarter of the male population has already gone through prison universities point of view Photo: Vladimir Radchenko, first deputy chairman of the Supreme Court (ret.), head of the center of the Institute of legislation and comparative legal science attached to the government of the RF Our “prison population” had come to a critical mark. Over the last 16 years – from 1992 through the year 2007 – in excess of 15 million persons have been convicted in the country. More than every tenth [person] out of a population of 140 million. Almost a million people per year. Of these 5 million and then some have been deprived of liberty. Let us think about these numbers. Their consequences manifest themselves on the social structure of society, demographics and even on the defense capacity of the country. An excessive “prison population” does not stimulate the birthrate, a criminal record narrows the circle of people subject to callup for military service.
Even in the unsettled years of turmoil and scarcity that preceded the birth of modern-day Russia – from 1987 through the year 1991 – 2.5 million people were convicted. So it turns out that the average annual conviction rate was then nearly twice as low.The more severely we punish – the more cramped it is in the coloniesThe notion about how the strategy of struggle with criminality demands a toughening of legislation and a strengthening of the punitive practice of the courts is erroneous. Furthermore, it becomes a factor leading to unfavorable changes in the social structure of the country – it fosters a growth in the level of the criminal milieu. Society is being filled with people having prior convictions: 15 million – this is a quarter of the adult male population. Furthermore – having gone through the school of “prison upbringing”. Taking account of those released from places of confinement in the Soviet years, there are around 8 million such persons.The dynamics of convictions show that the number of convicts depends not so much on the objective state of law and order as on the laws and the practice of their application. Our own historical experience bears witness that an excessive toughening of criminal legislation and intensification of the punitive practice of justice give the opposite results.Two trends gained a foothold in the USSR at the beginning of the 60s. New criminal codes were adopted in the union republics, a serious liberalization of criminal legislation took place. And at the same time, ever broader application was received by the release from criminal liability of those who had committed less dangerous crimes: as an alternative, measures of social influence were applied towards them. As a result, both crime and convictions began to decrease. If in the year 1961 there had been 877.5 thousand crimes registered, in ’65 – 751.8 thousand. Convictions in that same period decreased from 799.8 thousand persons to 571.5 thousand, while the number of those sentenced to deprivation of liberty – from 483 thousand to 329 thousand.The new political leadership of the country that replaced Khrushchev decided that the overcoming of criminality is going too slowly. In the summer of the year 1966 the CPSU CC adopted a decree on the intensification of the struggle with criminality. In two days there appeared an edict of the Presidium of the Supreme Soviet of the USSR, intensifying liability for hooliganism and introducing draconian measures of struggle with anti-social manifestations. In the foundation of the new policy lay a simple idea in the style of vulgar Marxism. Inasmuch as in a socialist society the social roots of criminality have been liquidated, the problem consists of the debauchery of individual persons, that is hooligans, for on hooliganish soil is committed the majority of all crimes. They decided that with a punitive practice the first two-three years there would be a growth in registered criminality, but then after that would begin its rapid reduction – right on up to complete liquidation.The corresponding influence was exerted on the courts and the procuracy. As a result already in the year 1966 the quantity of those convicted to deprivation of liberty increased one and a half times – to 491.3 thousand persons. Alas, from that year also began the ensuing, practically uninterrupted growth both of criminality, and of convictions. In the year 1984 were registered 2029 thousand crimes, were convicted 1288 thousand persons, including deprived of liberty 632 thousand against 329 thousand in the year 1965.The tougher that measures of a punitive character were applied, the higher became the level of criminality. And, what is particularly unpleasant, the quantity of particularly dangerous crimes grew – murders, grave bodily injuries, robbery-related assaults. The reason is simple – the social structure of society was changing precipitously: every year the quantity of people having criminal records increased. From “places not so far distant” to the cities and villages was returning approximately 600 thousand of yesterday’s camp inmates, bringing with them another attitude towards the norms of morals, other habits and connections.An audit of punitive codes is neededUnfortunately, the new Russia could not find an adequate answer to the turbulent growth of criminality at the beginning of its path. The acute political struggle of the years 1991-1993 completely moved this theme aside into the rank of the secondary. The hopes for new criminal and criminal-execution [penal] legislation did not justify themselves. The criminal code of the RF, even more severe than the old, Soviet, one, after a multitude of changes and additions has acquired an openly repressive character. As a result the increase in convictions, including deprivation of liberty, has started to significantly outstrip the increase in criminality.. In the year 1991, 593.5 thousand persons were convicted in Russia, including to deprivation of liberty – 207.3 thousand. These indicators gradually increased and attained in the year 2001 1244 thousand persons convicted, of them 368 thousand – to deprivation of liberty. At the same time, criminality increased then just by a third.In the years 2002 and 2003 there took place a significant liberalization of legislation in connection with the adoption by the State Duma on 20 December of the year 2001 of a Code on administrative offenses. The new law moved a series of acts from criminal offenses into administratively punishable misconduct. Amendments into the Criminal code were introduced in the year 2003. As a result, in that same year the number of persons convicted was reduced to 744 thousand, while those deprived of liberty – to 242 thousand. Unfortunately, the subsequent development of legislation and the new trend towards a toughening of its application have again led to an increase in convictions. In the year 2006, the number of those convicted comprised already 910 thousand, of these 314 thousand – to deprivation of liberty.The overall number of crimes registered by the organs of the MVD can not be regarded as an objective reflection of law and order, inasmuch as it depends on changes in legislation, ascribing these or the other acts to the number of criminal ones or vice versa. The most reliable are the most dangerous crimes – intentional homicides, grave bodily injuries, robbery-related assaults: they are accounted irrespective of changes in legislation and the practice of its application.In the year 2006 for intentional homicides were convicted 18.6 thousand persons. This is 10.5 percent less than in the year 2005, and corresponds to 11 percent of the reduction in the overall number of these crimes, including unsolved ones, registered by the MVD. The number of rapes registered by the MVD decreased in the year 2006 by 3.8 percent, robbery-related assaults – by 6.1 percent, the causing of grave harm to health – by 11.1 percent.Despite these processes, bearing witness to the improvement in the health of the criminal situation, the number of convicts in these same years grew by 3.5 percent, while that of those sentenced to deprivation of liberty – by 2 percent. In all, the number of those sentenced to deprivation of liberty by comparison with the year 2003 increased by a quarter, at the same time as the quantity of registered intentional homicides decreased over that same period by 14 percent, while grave bodily injuries – by 12 percent.As a result, the numerical strength of the “prison population”, reduced as it had been towards the end of the year 2003 to 763 thousand persons, comprised as of 1 August of the year 2007 888 thousand, or around 630 persons per 100 thousand population, competing on the latter indicator with the USA and outstripping many fold other countries of the world. But now there are already 895 thousand persons behind bars.Broad deprivation of liberty for crimes not representing particular danger for society gives a certain effect in the form of the temporary isolation of the offender, but concurrently entails negative consequences as well. For a person who has ended up in isolation, especially a lengthy one, there take place changes in the psyche, former social ties are violated, while upon release there arise problems with adaptation to life at liberty, which he can resolve on his own far from always.The humanization of criminal legislation and of the practice of its application must not be assessed simply as a manifestation of liberalism. On the contrary, it is a necessity for the gradual return to health of the social situation in the country.Bars as an extreme measureToday’s Criminal code in comparison with the previous one along a series of aspects differs by excessive cruelty. You come to the same kind of conclusion if you compare our criminal legislation with European states, for example the FRG, Austria, Italy. A series of acts, which by degree of social danger are sooner administrative misconduct – for example, the use of false documents for free passage on urban transit, the catching of fish in a not-large quantity with the application of fishing nets, trade on markets without a license – are treated as criminal offenses. For them are annually convicted tens of thousands of people. For some crimes it would be more rational to introduce administrative collateral estoppel, when criminal liability arises if the adopted measures of administrative influence turned out to be result-less. Let us say, with respect to cases of unlawful entrepreneurship, the violation of anti-monopoly legislation, certain ecological crimes.At the same time, liability needs to be stiffened for intentional deprivation of the life of a person under qualifying circumstances, having separated out those of them under which lifelong deprivation of liberty must be appointed without alternative. This is the murder of a person in connection with his public activity, the deprivation of the life of a minor, homicide linked with the abduction of a person or the capture of a hostage, with the use of tortures or in an especially agonizing way. We must also separate out a group of crimes representing exclusive danger for the state and citizens, – big narco-business, terrorism, genocide. For the commission of such crimes another, besides lifelong deprivation of liberty, measure of punishment may be applied only in the presence of weighty mitigating circumstances.Our punitive practice is distinguished too by exorbitantly lengthy terms of deprivation of liberty. Legislators have prescribed uncommensurately high minimal limits of sanctions with respect to many elements of crimes not associated with infringement on the life of a person. This leads to the appointment by courts of punishments which do not correspond to the social danger of the act. Therefore it is advisable to substantially reduce the lower thresholds of the sanctions for such crimes to the sizes accepted, for example, in the CC RSFSR of the year 1926 or in the criminal legislation of the FRG. Such an approach would allow courts to manifest a more differentiated approach towards persons sucked into the commission of crimes on the strength of a confluence of circumstances, as well as towards those participants in group crimes who have stepped onto the path of cooperation with the investigation in the exposure of accomplices.Advisable likewise is to move a series of elements of crimes from grave ones into the category of medium gravity. Sometimes an act ends up there due to purely formal circumstances, and not on the basis of socially dangerous consequences that had actually occurred. For example, the lion’s share of crimes attributable to art.111 CC RF – intentional causing of grave harm to health, are comprised of acts qualified on the basis of danger to life at the moment of the causing of the injuries. Usually this is penetrative stabbing-slashing wounds. Such a feature appeared in the Criminal code of the year 1960. The criminal legislation previously in effect appraised such injuries as grave bodily ones only in cases of enduring loss of working ability. Such a feature is absent in foreign legislation as well.We ought to also improve upon the order of conditional early release, having determined in the law clear-cut conditions under which a convict may come out to freedom. We need to reduce the element of the “discretion” of the administration of places of confinement and judges. Simultaneously this would allow the element of corruption-intensity of this institution to be reduced.It is advisable to introduce into the law changes that would allow the procuracy, investigators, the inquest to more broadly apply towards citizens who have committed crimes of not-large and medium gravity for the first time measures of pre-trial influence without bringing them to court. As concerns judicial practice, the application of punishment in the form of deprivation of liberty ought to be assessed as an extreme measure, having expanded legislatively the range of measures that the court can appoint in the capacity of an alternative to the deprivation of liberty, including having laid the stress on economic sanctions.Sanctions for arrest – by the hundreds of thousandsThe successful conducting of a state policy of counteracting criminality is possible only with the proper organization of law-enforcement activity. We will touch upon only one aspect of this problem – the selection of the detention of an accused in the capacity of a preliminary measure of restraint.When the question about in what order courts in accordance with the demands of the Constitution are going to sanction arrests was being decided, at first it was assumed that the procurator will apply to the court with a corresponding petition and will bear correspondingly the entire fullness of liability for the substantiatedness of the application. However, later they decided that the inquestor or investigator has to apply to the court with the approval of the procurator. In the year 2007 in connection with the formation of the Investigative committee, they removed the procurator completely from the procedure of arrest with respect to cases found in the production of investigators.In the meantime, the situation in this sphere demands serious analysis and intensification of procuratorial oversight. In the year past, according to judicial statistics, judges sanctions 223 thousand arrests, to deprivation of liberty were sentenced 309 thousand persons, of these 103 thousand were not arrested before trial and were taken into custody in the courtroom. The numbers show that many of them sat [did time] in vain. Taking into account that 35 thousand persons were released from custody in the courtroom: they were judged without deprivation of liberty, it turns out that more than 52 thousand persons arrested during the course of an investigation, or nearly every fourth one, were arrested without sufficient grounds.The struggle with criminality demands a thought-through approach. Tightening the screws is just as devoid of prospect as boundless all-forgiveness. The elaboration and consistent conducting of a single stategy in this sphere without hasty decisions based on emotions or impressions from isolated cases, – this is the only way to social healing.Published in RG (Federal edition) N4741 of 2 September 2008