Addition of punishments
https://doi.org/10.52468/2542-1514.2022.6(3).186-198
Abstract
Introduction. They complete and specify the rules for assigning the final penalty for both single crimes and for the totality of crimes and sentences of the prescriptions of Articles 71-72.1 of the Criminal Code, the content of the provisions of which is much broader than the names of the articles themselves. The logical sequence of the presentation of regulatory requirements in these articles is flawed.
The method and the basic algorithm for determining the final penalty when adding punishments. The final punishment for two types of plurality - the totality of crimes and sentences – is determined by the rules of Articles 69-72 of the Criminal Code, which establishes: (a) a method for determining the final punishment (absorption, full or partial addition); (b) a basic algorithm for determining the final penalty when adding punishments imposed for individual crimes; (c) differentiated limits of the final punishment.
Rules for adding punishments. Article 71 of the Criminal Code details the rules for adding individual punishments, different in appearance: (a) by transferring to a single more severe type of punishment; (b) by their independent execution (thereby - only a complete addition).The proportions by which the replacement is made are chosen arbitrarily, and in some cases, contrary to the intention of the legislator, it is even possible to mitigate the punishment instead of tightening it. There is an obvious need for scientific substantiation of such coefficients, taking into account, at least, the political and social significance of deprivation and restrictions that determine the qualitative indicator of the repressiveness of punishment, their consequences (primarily legal and economic) both for the convict himself and for society, which is the subject of independent research. The legislator has not strictly observed the principle of the arrangement of types of punishments depending on their severity and severity. The problem lies in the fact that all the rules for the application of punishment (sentencing, replacement of punishment with a stricter one, release from serving a sentence) proceed from the presumption of an indisputable and accurate classification of punishments according to their severity. The above fully applies to the provisions of Articles 69-72 of the Criminal Code. Part 2 of Article 71 excludes the first stage of the addition of individual punishments, different in type, namely their transfer (recalculation) to another type of punishment. In such cases, independent execution of the relevant measures is provided. The legislator has avoided developing a set of rules defining the independent execution of punishments imposed by the court without bringing them to a single form. In fact, Part 2 of Article 71 of the Criminal Code presents only some special cases of this type of addition of punishments, but even they suffer from incompleteness.
Addition of punishments with their independent execution. It would be preferable to reflect in Part 2 of Article 72 of the Criminal Code all the existing rules for the addition of individual punishments involving the independent execution of the measures-components: (1) additional punishments of different types; (2) basic and additional punishments of different types; (3) basic and additional punishments of the same type; (4) real for the execution of punishment and suspended sentence; real for the execution of punishment and punishment, the execution of which is postponed; two or more sentences with a suspended sentence; sentences with a suspended sentence and with a suspended sentence; (5) basic or additional punishments of the same type, if the characteristics of the repressiveness of the penalties determined by the court are fundamentally different, in particular, the consequences of evasion from serving the sentence.
Conclusions. The current rules for adding and determining the final terms (sizes) of punishment are desystematized, fragmentary and do not always correspond to the elementary canons of legislative technique, their very presentation in the Criminal Code is rather chaotic. They do not fully take into account the peculiarities of the construction of the punishment system and its shortcomings, general and special rules for the appointment of punishments and other measures of criminal responsibility.
About the Author
V. M. Stepashin
Dostoevsky Omsk State University
Russian Federation
Russian Federation
Vitaliy M. Stepashin – Doctor of Law, Professor, Department of Criminal Law and Criminology. RSCI SPIN-code: 9569-9315
55a, Mira pr., Omsk, 644077
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For citations:
Stepashin V.M. Addition of punishments. Law Enforcement Review. 2022;6(3):186-198. https://doi.org/10.52468/2542-1514.2022.6(3).186-198
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