Article 43. Concept and purposes of punishment

Goals and types of punishment

First of all, it is necessary to talk about the role of punishment in the fight against crime.

Unfortunately, in connection with the increase in crime, the tendency in the public consciousness, already known in world history, to believe that crime can be fought by tightening punishment is quite clearly manifested. This position is erroneous.

The entire history of the development of human society shows that with the help of cruel punishments it has never been possible to cope and successfully fight crime. Much more important here is the inevitability, the inevitability of punishment, and not its cruelty.

The role of punishment in the fight against crime

What role does punishment play in the fight against crime?

Far from being the main one, and even then only auxiliary, since in the fight against crime, preference should be given to measures of an economic, political, cultural and organizational nature.

Punishment is a last resort and should be used only when preventive measures have proven ineffective. Even Montesquieu, and then Beccaria, more than two centuries ago, formulated the idea that a legislator, wise by experience, would better prevent a crime than be forced to punish for it later.

Punishment should only be applied when all other remedies have been exhausted. After all, no one has yet proven what punishment is: good or evil?! Apparently both at the same time. It all depends on in what terms it is considered and in what relation it is placed with other social values.

Goals and types of punishment

Signs of punishment

What is punishment and what are its signs?

In Part 1 of Art. 43 of the Criminal Code of the Russian Federation states: “Punishment is a measure of state coercion, imposed by a court verdict. Punishment is applied to a person found guilty of committing a crime and consists of deprivation or restriction of the rights and freedoms of this person as provided for in this Code.”

The main signs of punishment are:

punishment is primarily a measure of state coercion;
punishment is a measure that is applied only for a crime;
punishment is applied only by court verdict;
punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes (Part 2 of Article 43 of the Criminal Code of the Russian Federation);
in punishment - a pronounced negative assessment of both the crime and the person who committed it. Punishment states a negative assessment on the part of the state of both the criminal act and the convicted person himself.

When applying punishment, one must always proceed from two main directions in criminal policy.

Application of strict punishments to persons who have committed serious crimes and repeat offenders;
Application of more lenient punishments, that is, punishments not related to the isolation of a person from society, or even suspended sentences, and sometimes exemption from punishment of persons who have committed crimes that do not pose a great public danger, that is, less serious ones, or those committed for the first time.

The content of these two main directions should determine the criminal policy of our judicial authorities. The punishments provided for in the Criminal Code of the Russian Federation form a certain system.

The punishment system is an exhaustive list of punishments established by criminal law, binding on the court, arranged in a certain order and in a certain relationship with each other.

Goals and types of punishment

Concept and signs of criminal punishment

In accordance with Part 1 of Art. 43 of the Criminal Code of the Russian Federation, punishment is understood as a measure of state coercion imposed by a court verdict. Punishment is applied to a person found guilty of committing a crime and consists of deprivation or restriction of the rights and freedoms of this person as provided for in the Criminal Code.

From the analysis of this definition, a number of features characterizing punishment can be identified:

1. Criminal liability is implemented through the imposition of punishment. According to Part 2 of Article 2 of the Criminal Code of the Russian Federation, the types of punishments, as well as other measures of a criminal legal nature to be applied for committing crimes, are established by the Criminal Code. An exhaustive list of them is contained in Art. 44 of the Criminal Code of the Russian Federation and in one part or another is reproduced in the sanctions of the norms of the Special Part of the Code.

2. Punishment is public and not private, i.e. appointed on behalf of the state and is a measure of state coercion.

3. Criminal punishment is imposed only on persons who have committed crimes. Punishment in its focus is a measure of a strictly personal nature. It, as stated in the law, applies only to the person found guilty of the crime and to no one else. This distinguishes punishment from civil sanctions that can be applied to the owner of a source of increased danger for the actions of an individual who has violated the rules for using the said source of danger, or from administrative penalties applied to a legal entity for unlawful actions of individuals acting on behalf of and in interests of a legal entity, or from financial liability to which parents of minors who cause property damage may be held.

4. Punishment is a negative assessment of the committed act and the personality of the perpetrator. Punishment expresses official, on behalf of the state, condemnation and censure of the perpetrator. Finding him guilty of committing a crime means that the act committed by this person is recognized as a crime, i.e. the most dangerous type of offense, and the convicted person is recognized as a criminal deserving of legal and moral reproach.

5. Punishment is imposed only by court verdict. In accordance with Part 1 of Art. 49 of the Constitution of the Russian Federation, the fact that a person has committed a crime can only be established by a court verdict that has entered into legal force. Two important provisions follow from this, reflected in Part 1 of Art. 43 of the Criminal Code. Firstly, punishment can only be imposed by a court. No other government body or official has this right. Secondly, the only procedural form of sentencing is a court conviction. A judicial act imposing punishment on a person found guilty of committing a crime cannot take the form of a decision, ruling, decree or other act.

6. Punishment entails a special criminal law consequence - a criminal record. Punishment is the only measure of government coercion that results in a criminal record. This sign concerns not the essence of punishment, but its consequences. A criminal record means a specific legal condition of a person, which continues for a period established by law after serving a (full or partial) sentence and is associated with certain restrictions of a criminal legal and general social nature.

7. Punishment in its essence is punishment, i.e. consists in the deprivation or restriction of the rights and freedoms of the person who committed the crime as provided for in the Criminal Code. Due to its punitive nature, punishment is perceived as a serious deprivation that significantly changes the status of a citizen, and has the property of intimidation. Punishment can be expressed in deprivation of the convicted person’s freedom, in its restriction, in deprivations of property (with a fine, confiscation of property), moral (for example, with deprivation of an honorary title) or other nature.

Types of punishment

According to the current legislation, the following types of punishments can be applied to persons found guilty of committing a crime (Article 44 of the Criminal Code of the Russian Federation):

fine;
deprivation of the right to hold certain positions or engage in certain activities;
deprivation of a special, military or honorary title, class rank and state awards;
compulsory work;
correctional work;
restriction on military service;
restriction of freedom;
forced labor;
arrest;
detention in a disciplinary military unit;
imprisonment for a certain period of time;
life imprisonment;
the death penalty.

Groups of punishments according to the method (order) of their administration

According to the method (order) of their administration, punishments are divided into three groups: basic, additional and mixed.

Basic punishments

Basic punishments are those punishments that are assigned as main, independent punishments and cannot be assigned as additional to other types of punishments.

According to current legislation, these include: compulsory, correctional labor, restrictions on military service, forced labor, arrest, imprisonment for a certain period, life imprisonment.

Additional penalties

Additional punishments are those punishments that cannot be imposed independently, but only as an addition to the main ones. Additional penalties include: deprivation of a special, military or honorary title, class rank and state awards, confiscation of property.

Article 43. Concept and purposes of punishment

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Article 43. Concept and purposes of punishment

1. Punishment is a measure of state coercion, imposed by a court verdict.
Punishment is applied to a person found guilty of committing a crime and consists of deprivation or restriction of the rights and freedoms of this person as provided for in this Code. 2. Punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.

Commentary on Article 43

Punishment is not just a negative sanction of a criminal law norm, but the most important legal institution of a complex (intersectoral) nature. The institution of punishment is related to criminal, criminal procedural and criminal executive law. The functions of punishment are very diverse, and therefore, in theory, criminal punishment is considered in different aspects - as a legal institution, as a form of implementation of criminal liability, as a crime prevention factor, etc.

In Part 1 of Art. 43 of the Criminal Code of the Russian Federation, punishment is defined as a measure of state coercion, imposed by a court verdict. Punishment is applied to a person found guilty of committing a crime and consists of deprivation or restriction of the rights and freedoms of this person as provided for in the Criminal Code of the Russian Federation.

Since the definition reflects the properties of the phenomenon being defined, it is possible to understand from it the main features of criminal punishment.

1. Punishment is a measure of state coercion. First of all, punishment is coercion; its administration and execution are carried out against the will of the convicted person. Punishment is always imposed on behalf of the state, the Russian Federation, i.e. is of a public nature and expresses official condemnation of the criminal and his actions. The appointment and execution of criminal punishment is the exclusive prerogative of authorized state bodies. All participants in legal relations are obliged to obey the decisions on punishment that have entered into legal force. The compulsory nature of the punishment also means the obligation of the convicted person to endure the deprivations and restrictions associated with serving the assigned sentence.

From other coercive measures applied, for example, for administrative offenses, criminal punishment differs quantitatively (includes more restrictions) and qualitatively (it is assigned only for committing crimes, and its appointment entails a legal consequence in the form of a criminal record).

2. Criminal punishment is a special measure of state coercion, imposed only by the court. In accordance with Part 1 of Art. 49 of the Constitution of the Russian Federation, no one can be found guilty of committing a crime until his guilt is proven in the manner prescribed by law and established by a court verdict that has entered into legal force. According to Part 1 of Art. 118 of the Constitution of the Russian Federation, justice in the Russian Federation is carried out only by the court. The court is the only government body that makes a conviction and imposes criminal punishment. Exemption from punishment is also carried out only by the court. An extrajudicial procedure for release from punishment is possible only by virtue of acts of amnesty or pardon.

3. Punishment is personal (individual) in nature. In accordance with the principle of guilt (Article 5 of the Criminal Code of the Russian Federation), liability arises only for a guilty act. Punishment can only be applied to the person found guilty of the crime and to no one else. Modern criminal law does not know collective responsibility and punishment.

This is also true for cases of involvement in a crime.

- not promised in advance acquisition or sale of property known to be obtained by criminal means (Article 175 of the Criminal Code of the Russian Federation), and concealment of especially serious crimes not promised in advance (Article 316 of the Criminal Code of the Russian Federation). These acts are not causally related to the crime committed and are not a type of complicity, i.e. do not form complicity, and responsibility for them arises because they themselves contain signs of an independent crime. Their social danger lies in the fact that they complicate the activities of law enforcement agencies in finding, exposing and punishing persons guilty of committing a crime. For example, if Ivanov hides his friend Petrov, who committed a murder, in the basement, then he is responsible not for the murder committed by Petrov, but for his (precisely his!) actions in hiding the criminal.

But the personal nature of punishment does not mean that it cannot cause suffering (harm) and not affect persons not involved in the crime, for example, family members of the convicted person.

4. Punishment consists of deprivation or restriction of the rights and freedoms of the guilty person. The content of the punishment is to deprive the subject of any material or spiritual benefits provided for by the criminal law or limit them, which causes him suffering. This could be freedom, property, honor, etc. Different types of punishment differ precisely in their content. As a result of conviction, the criminal may lose many other benefits (family, respect of others, etc.), but they are not included in the content of the punishment, since the need for their deprivation is not specified in the law. The famous Russian lawyer N.S. drew attention to this. Tagantsev: “It is necessary to separate from punishment the moral torment and remorse experienced by the criminal, even if they were so strong that in order to stop them he hastened to surrender to the hands of justice and suffer his guilt. It is further necessary to highlight the changes caused by the crime in the attitude towards the perpetrator of his family, acquaintances, society, the loss of love, respect, trust, and, moreover, even when such a loss is expressed in an external, tangible form: a father’s curse will not be a punishment in the legal sense, although it was accompanied by the drawing up of a spiritual will by an angry father, depriving the guilty son of his inheritance; it will not be a punishment to give up a home, not to give a hand, to lose an election, etc., as long as all these deprivations do not constitute a legal limitation of the individual and his rights” <1>.

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<1> Tagantsev N.S. Russian criminal law: Lectures. The general part. T. 2. M., 1994. P. 6.

Also not included in the content of punishment, for example, imprisonment, means of correction (socially useful work, training, educational work, etc.). After all, work, education, and sports are good in themselves.

The content of punishment appears in the legal form of legal restrictions - deprivation or restriction of the rights and freedoms of man and citizen. These restrictions can only be established by federal law. In Part 3 of Art. 55 of the Constitution of the Russian Federation exhaustively defines the grounds for establishing such restrictions: protecting the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state.

Sometimes a criminal record is also considered a sign of punishment. If a criminal record is a sign of punishment, then when there is no punishment, there should be no criminal record. But those who have been convicted are also persons to whom no punishment was applied (conditionally sentenced during the probationary period), and persons who are released from serving their sentence (early or after serving their sentence). In addition, a criminal record characterizes not the punishment as such, but the person to whom it is assigned. Therefore, it would be more correct to recognize a criminal record not as a sign of punishment, but as a legal consequence of its appointment, expressed in the special legal status of the person.

The goals of punishment are among the system-forming characteristics; they influence the construction and direction of many legal institutions (for example, imposition of punishment, exemption from serving a sentence) and the nature of the sanctions of criminal law norms. So, in Part 1 of Art. 60 of the Criminal Code of the Russian Federation prescribes: “A more severe type of punishment from among those provided for committing crimes is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment.” The goals of punishment are determined by the criminal policy of the state: by formulating goals, the legislator shows what desired end result the state seeks to achieve by applying criminal punishment for crimes committed. The question of goals is closely related to the problem of the effectiveness of criminal punishment, and criminal law in general.

From the principle of humanism (Part 2 of Article 7 of the Criminal Code of the Russian Federation) it follows that punishment is not intended to cause physical or moral suffering. The state does not take revenge on criminals, punishment does not aim simply to punish the criminal, the effect of punishment is directed to the future. C. Beccaria wrote: “The purpose of punishment is not to torture and torment a person and not to make an already committed crime non-existent... The purpose of punishment is only to prevent the guilty person from again causing harm to society and to deter others from committing the same” < 1>.

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<1> Beccaria Ch. On crimes and punishments. M., 1939. P. 373.

Punishment is not the purpose of punishment, but its essence, i.e. inherent (attributive) property. What does not have the property of punishment, what is not capable of causing suffering, cannot be punishment. In this case, we are not talking about the individual perception of punishment (different people can experience deprivation of the same benefit differently), but about the generally accepted idea of it. As N.S. wrote Tagantsev, “deprivation or limitation of benefits and rights is suffering from the point of view of the general conditions of human life, the known average sensation of suffering, regardless of how the person being punished looks at it and feels it” <1>. And only because punishment objectively has the property of causing suffering can the goal of preventing crimes be set before it. And since punishment in itself is punishment, there is no point in setting the goal of punishment before it.

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<1> Tagantsev N.S..

Russian criminal law: Lectures. The general part. T. 2. M., 1994. P. 92.

In Part 2 of Art. 43 of the Criminal Code of the Russian Federation legislates the purposes of punishment: “Punishment is applied to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.” Thus, punishment has three main goals:

— restoration of social justice;

- correction of the convicted person;

- preventing the commission of new crimes.

Violation of the law is at the same time a denial of the idea of social justice. In this sense, a crime is an act that denies the fair structure of social life and disorganizes it. By imposing punishment on the guilty person, the court, on behalf of the state, takes measures to restore social justice. Restoring social justice also means compensation for damage in relation to both the individual victim and society as a whole. By exercising its right to punish a criminal and thereby restore the social justice violated by him, the state simultaneously supports the authority of the criminal law and fosters respect for it.

The restoration of social justice as a goal of punishment should not be reduced to the principle of justice (Article 6 of the Criminal Code of the Russian Federation), although they are, of course, interconnected: only fair punishment can contribute to the restoration of social justice. Paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation” states: “Draw the attention of the courts to the need to comply with the requirements of the law on a strictly individual approach to imposing punishment, bearing in mind, that fair punishment contributes to solving the problems and achieving the goals specified in Articles 2 and 43 of the Criminal Code of the Russian Federation" <1>. The principle of fairness of punishment does not characterize the social preventive function of the institution of punishment, but makes certain demands on the specifically imposed punishment - it must correspond to the nature and degree of social danger of the crime, the circumstances of its commission and the identity of the perpetrator. Here we are talking about justice towards the criminal. Both too severe and too lenient punishment will be unfair.

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<1> Bulletin of the Supreme Court of the Russian Federation. 2007. N 4.

The goal of correcting a convicted person involves neutralizing the antisocial views and attitudes of the convicted person, developing in him a respectful attitude towards man, society, work, and the rules of human society. This goal is achieved by applying to the convicted person both punishment and other means of correction listed in Part 2 of Art. 9 of the Criminal Executive Code of the Russian Federation (PEC RF) (labor, education, vocational training, educational work and social influence). Since criminal law norms constitute the lowest, elementary level of the rules of human society, the goal of correction can be considered achieved if, after serving the sentence, the convict no longer commits crimes, regardless of the motives for law-abiding behavior - whether he realized the reproach of his behavior, repented of his crime, or is afraid again be punished.

The purpose of preventing the commission of new crimes, as a rule, is divided into two - special (private) prevention (prevention of crimes on the part of convicted persons) and general prevention (on the part of other persons).

Addressee of the purpose of the special warning

are persons serving sentences (convicts). This goal is achieved by creating conditions that make it difficult or depriving the offender of the physical ability to commit new crimes (placement in a correctional facility; ban on holding certain positions), and establishing control over him by a specialized government agency. The commission of a crime by a convicted person while serving a sentence indicates that in relation to him the purpose of a private warning was not achieved.

The addressee of the purpose of the general warning

are simply other persons, i.e. unconvicted. But, generally speaking, the real addressee of this goal is not all citizens, but only unstable ones, i.e. those who do not commit crimes only because of fear of punishment. Most people do not commit crimes due to internal convictions; for them, intimidation has no motivating meaning. And there are persons for whom the threat of punishment also does not have a motivating meaning, but for other reasons (for example, suicide bombers). The general preventive goal is achieved, firstly, by issuing a criminal law establishing responsibility for committing crimes (threat of punishment), and secondly, by applying punishment to specific individuals (as confirmation of the reality of the threat). The inevitability of responsibility has a greater preventive effect than the severity of punishment. The commission of a crime by another person other than a convicted person indicates that in relation to this person the general preventive goal was not achieved.

The purposes of punishment enshrined in the law must be independent and independent. This means that none of them is a means to achieve the other and that they can be achieved independently of one another, i.e. in the actual application of punishment, some goals can be achieved, but others cannot. For example, a citizen committed a crime, but neither while serving his sentence nor after serving it did he commit any more crimes. Consequently, one goal of punishment (general prevention) in relation to him was not achieved, but the specific preventive and corrective goals were achieved.

In addition, the goals of applying punishment must be realistic (practically achievable), i.e. be achieved through criminal legal means, and have objective (verifiable) performance indicators. Efficiency refers to the ability of a means to achieve its intended purpose. The degree of coincidence between the goal and the result is an indicator of the effectiveness of the chosen means. The problem of means to achieve the goals of punishment and their effectiveness is very complex and insufficiently developed in theory.

The goals of punishment are characterized by different mechanisms of influence: general prevention is the mental impact of the threat of punishment; private warning - physical and mental impact of the conditions of serving the sentence; correction - the mental impact of a served sentence. They have different performance indicators: for general prevention - the level of primary crime; for private prevention - the crime rate among persons serving sentences; for correction - the level of recidivism.

But, as already mentioned, the threat of punishment does not have a motivating value for all citizens. Therefore, the level of primary crime as an indicator of the effectiveness of the general prevention goal is rather conditional. An equally conventional indicator for the purpose of correction is the level of recidivism. As data from criminological studies show, the main reasons for recidivism are shortcomings in the work and living conditions of those released from punishment, and the unsatisfactory work of institutions and bodies executing punishment in correcting convicts is not among the main ones.

It should be noted that the possibility of achieving goals also depends on the nature of the punishment. For example, the death penalty is not intended to be reformative. And before life imprisonment, since the law provides for the possibility of parole for a convicted person from serving his sentence (Part 5 of Article 79 of the Criminal Code of the Russian Federation), the goal of correction is set.