AN ANALYSIS OF THE PREVENTIVE FUNCTION OF THE PENITENTIARY SYSTEM IN INTERNATIONAL LEGAL INSTRUMENTS

ABSTRACT

This article analyzes the preventive function of the penitentiary system in international legal documents, focusing on the harmonization of modern criminal-executive legislation with progressive international trends. The evolution of humanitarian values and legal principles in international law has influenced national laws, with an apparent precedence of international law. The study explores the international penitentiary law, highlighting key sources such as the Standard Minimum Rules for the Treatment of Prisoners. The incorporation of international norms into national law is discussed through reception and reference methods. The importance of clear articulation and concretization of international norms in national legislation is emphasized for effective application.

АННОТАЦИЯ

Данная статья анализирует профилактическую функцию пенитенциарной системы в международных правовых документах, сфокусированную на гармонизации современного уголовно-исполнительного законодательства с прогрессивными мировыми тенденциями. Эволюция гуманитарных ценностей и правовых принципов в международном праве повлияла на национальное законодательство, с очевидным приоритетом принципов международного права. Исследование охватывает уголовно-исполнительное право, выделяя ключевые источники, такие как Минимальные стандартные правила для обращения с заключенными. В статье обсуждаются методы имплементации международных норм в национальное законодательство. Подчеркивается важность четкой формулировки и конкретизации международных норм в национальном законодательстве для эффективного применения.

Keywords: penitentiary system, liability, preventive function, penalty, convict, prison, punishment, imprisonment, Criminal-Executive Code, humanism, legality

Ключевые слова: пенитенциарная система, ответственность, профилактическая функция, наказание, осужденный, наказание, Уголовно-исполнительный кодекс, гуманизм, законность

The dominant vector of harmonization of modern criminal-executive legislation lies in the plane of progressive trends in international law. Since the middle of the twentieth century, the international (primarily public) law has seen an escalation of humanitarian values and legal principles, which is also common in national law. However, these trends show an obvious priority of international law over the domestic law [1, p.178-182; 189-190; 195-196]. In this case, O.I. Tiunov noted that a wide range of states allows recognizing the existing international legal standards in the field of human rights as binding for themselves due to their optimal "minimum"[2, p.73].As it is correctly noted, "integration into the world community is possible provided further approximation of national legislation and law enforcement practice to international humanitarian standards"[3, p.7-10]. Consequently, the cultural enrichment of international law is ahead of the national one.

At the same time, it is the nature of the daily application of the norms of national law that makes it possible to notice of its higher educational impact in comparison with international law. In turn, the development of legal education is determined by the legal culture as the most important prerequisite for the formation of a law-based state and civil society. In the opinion of A.P. Pleshakov, legal education presupposes not only purposeful development of legal culture and specific normative and value imperatives, but also understanding of universal values [4, p.48-49].

In general, international penitentiary law can be presented as "a set of principles and norms regulating the legal status of convicts, establishing international standards and rules for the enforcement of various types of punishment, as well as regulating issues of international cooperation in the penitentiary sphere" [4, p.48-49].

The core of this system of legal acts is the Standard Minimum Rules for the Treatment of Prisoners of 1955, which have received international recognition as acceptable practice in the penal system. This document expressly states that they do not have mandatory status in international law. Thus, Art. 1 of the said document declares that these rules "are only intended to state, on the basis of the generally accepted achievements of modern thought and taking into account the basic elements of the most satisfactory systems at the present time, what is usually considered correct from the point of view of principle and practice in the field of the treatment of prisoners and the management of correctional institutions" [3, p.7-10].

The emergence of the norms of international penitentiary law inevitably led to the need for them to be strictly enforced, in order to maintain the standards that are accumulated in this sphere in the evolutionary development of humanistic values and pragmatic views. From a methodological perspective, the importance of compliance with the norms of international criminal-executive law is explained by the organic involvement of this sub-sector in international criminal law, one of the most promising areas of development is "the harmonization of rules on due process in the administration of international criminal justice applied by both international judicial bodies and national criminal justice authorities" [5,  p. 104].

The conditions for the application of the norms of the criminal-executive law (norms deriving from international legal acts) are contained in the norms of international law. The incorporation of such norms into national law, regardless of the way, does not change the character of the norm as a norm of international law, but only determines its operation in the domestic sphere, that is, obliges the national courts to apply the rule of international law, and individuals to execute it. It should be noted that, the content of the recipient rate does not change from this, since the very rule of international law (that is, the rule of behavior) does not change, which also begins to act on the territory of the state.

In view of the fact that both reception and sending are essentially the same phenomenon - the incorporation of the international law, borrowed for the national legal system, it should only be about two technical ways of such incorporation of the norms of international law that, within the framework of the criminal executive law systems begin to operate regardless of how they were incorporated in their totality. These norms are a reciprocated right (in form and mode of action - national), and in essence (juridical nature, material sources) - international).

In this case, it becomes relevant to evaluate the concept of "source of legal norm" in two ways: 1) in the sense of a law-making decision and 2) in the sense of the actual location of the rules of law.

Bringing domestic criminal-executive legislation in line with international obligations is fundamentally possible in two main ways: 1) by creating, changing or repealing the norm of national law objectified in CECs, 2) and by creating a national law, objectified in at least two partial sources, one of which is an international treaty, and the other is a CEC. This is the so-called blanket formula, or a reference and a reciprocated right, which, when interpreted, also refers to the international legal system.

From this it follows that an international treaty under referential lawmaking in national law should be recognized as a source of internal criminal-executive law. That is, the sources of the standard should be recognized in the national law, which contains the blanket formula or recipient norms, and the international treaty in which the rule of conduct is set forth. Each of these acts is proposed to be called a partial source of a unified norm and, consequently, of criminal law.

The reform of the penitentiary system of Uzbekistan is one of the criteria for the democratic development of the country. The need for reform was primarily due to the fact that the criminal executive system was created and for a long time functioned as a machine for the repression and exploitation of prisoners. The penitentiary system is a huge network of institutions - colonies, pre-trial detention centers, prisons, and penitentiary inspectorates.

That is why the main direction of the reform is the reduction in the number of prisoners. At present, when the first results of the reduction in the number of prisoners, in particular those held in pre-trial detention centers, are obtained, further changes are possible that will bring the actual situation in the penitentiary system even closer to international and national standards.

It should be highlighted that, according to the provisions set forth in international legal standards, the decision to distribute (transfer, transfer) convicts between penal institutions should not create difficulties for convicts and their families. For the purposes of social rehabilitation, convicts must be held in penitentiary institutions near their residence or at a distance as close as possible to them. The standards recommend "whenever possible to consult with convicted persons and fulfill their reasonable requirements". Such consultations should be carried out before transfer to places of serving the sentence, while in pre-trial detention centers.

Despite the assurances of scientists in the literature, that a significant part of the norms of international law, is self-executing and capable of directly regulating criminal procedural relations[6, p. 3], author believe that the absence of a single interpretation and the uncertainty of the concept of universally recognized principles and norms of international law on the one hand exclude the possibility of practical application of these principles and norms, since they are not formulated, but on the other - they allow the expansion or narrowing of their list, their arbitrary interpretation and, as a consequence, violation of the rights and legitimate interests of participants in criminal proceedings. In order to be directly applicable, the norms of international law must have a sufficiently specific content capable of generating rights and obligations of participants in legal relations.

At the same time, L.B. Alekseeva, who believes that the principles and norms of international law in themselves can not be included in the national legislation, that their concretization is necessary both at the constitutional level and at the level of branch legislation [7, p. 57]. To do this, they need to be clearly articulated in the Constitution and the current criminal enforcement legislation. In addition, universally recognized principles and norms of international law should be applied, as included in the Constitution and in the sectoral legislation, in accordance with the purposes and principles of the criminal procedural law the procedure established by the criminal procedural legislation of the Republic of Uzbekistan.

References:

1. Craig P., Grainne de Burca. EU Law. Text, Cases and Materials.3rd ed. — Oxford: Oxford University Press, 2002. P. 178—182, 189—190, 195—196.
2. Tiunov O.I. Modern problems of international humanitarian law // Journal of Foreign Legislation and Comparative Law. 2008. Issue. 1 (№ 12). P. 73.
3. International standards in the penal field: Reader and annotation of legal, psychological, pedagogical and professional ethical documents. 2nd ed., Rev. and add. - Ryazan, 2006. – P. 7-10.
4. Pleshakov A.P. Legal culture and the formation of the new Russian statehood // Legal culture. 2007. № 1. P. 48–49.
5. Sheriff Bassiouni M. Philosophy and Principles of International Criminal Justice // Comparative Constitutional Review. 2009, № 1. P. 104.
6. Malinovsky O.N. The norms of international human rights law as a source of Russian criminal procedure law: Autoref. dis ... cand. legal sciences. - Krasnodar, 2003. — P. 3.
7. Alekseeva L.B. The right to a trial: implementation of the generally recognized principles and norms of international law in the Code of Criminal Procedure of the Russian Federation: Dis ... Dr. jur. sciences. - M., 2003. — p. 57.