On the substitution of compulsory and corrective labour with penal labour due to malicious evasion

When the Criminal Code of the Russian Federation included penal labour as a form of punishment, the legislative framework governing the appointment and execution of this criminal punishment was updated. This brought about an objective need to study the procedure of substituting other punishments, not related to the isolation of the convict from society, with penal labour. Based on legal acts and research, the author raises the question whether it is admissible to substitute compulsory and corrective labour with penal labour according to Part 3 of Art. 49 and Part 4 of Art. 50 of the Criminal Code of the Russian Federation, respectively, if the malicious evasion from serving the previous sentence concerns the convict's violation of labour discipline. Some researchers believe that when substituting the unserved part of compulsory or corrective labour with a more severe criminal punishment, the court should not take into account the nature of malicious evasion. However, certain types of violations of the procedure and conditions for serving compulsory and corrective labour under Art. 30 and Art. 46 of the Penal Code of the Russian Federation testify to the inability of the convict to carry out labour activities, which is an integral attribute of penal labour. Therefore, the court needs to consider substituting the unserved part of compulsory or corrective labour with confinement, which will spare the necessity of returning to this issue when the convict is found to be maliciously evading compulsory labour. Currently, there is no uniform judicial practice on the problem under study. The failure to fulfill or improper fulfillment of the labour duties by the convict may be a reason for substituting compulsory or corrective labour with both penal labour and imprisonment, since the court is not required to justify the choice of punishment in the form of penal labour or confinement when a case under Part 3 of Art. 49 and Part 4 of Art. 50 of the Criminal Code of the Russian Federation is being considered. The author proposes to amend Decree No. 21 of the Plenum of the Supreme Court of the Russian Federation of December 20, 2011, “On the application by courts of legislation on the execution of sentences”, according to which the systematic violation of labour discipline by the convict while serving compulsory or corrective labour becomes the basis for the substitution of the unserved part of the punishment with penal labour. The proposed changes not only comply with the norms of international law, but also make it possible to exclude the use of penal labour in relation to convicts avoid labour activity.

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