What are the most important concepts in criminal policy? Many immediately mentioned this four - criminalization, decriminalization, penalization and depenalization. In the article we will consider what is hidden behind them, we will reveal their distinctive features. Consider also distinguished varieties.
Criminalization and decriminalization
These two concepts are considered the main methods of criminal law policy. Consider their definitions:
- Criminalization - the recognition of an act dangerous on the basis of criminal law. Subsequent opposition to it through the criminal law policy pursued by the state.
- Decriminalization - the so-called recognition of the inappropriateness of a specific criminal law opposition to an act, taking into account the criminal law policy used by the state.
Criminalization Features
Criminalization will occur along with the emergence of a public danger of an act. If there is no such danger, then, accordingly, decriminalization occurs.
It should be noted that the criteria of public danger change with time, the level of development of mankind. The state should proceed from its own interests, as well as the interests of citizens and the mass of legal entities whose rights it is called upon to protect by identifying this public danger. And already the consequence of such a comprehensive and deep analysis will be criminalization / decriminalization.
It is also important to note that the analogy acts as a method of criminalization. But at the same time, the application of both the criminal law and its extended interpretation by analogy is unacceptable.
Basic principles
We will now reveal the basic principles of criminalization and decriminalization:
- Timeliness of action.
- The redundancy of criminal law prohibitions.
- Regarding criminalization - the prevalence of positive changes.
- The principle of sufficient public danger of the acts being analyzed.
- The possibility of a positive impact of the criminal law system on socially dangerous behavior.
Penalization
We now turn to the concepts and types of penalization and depenalization. Let's start with the first term.
Penalization is a process during which the nature of the punishability of a socially dangerous act is determined. Actual punishment will also be called. In other words, the process of sentencing within the boundaries of judicial practice.
As for the above concepts, it is precisely penalization that acts as a quantitative part of criminalization, its measure and indicator.
Punishment here is a sign immanently inherent in a crime. This is the classification of a socially dangerous act as a crime. That is, giving him criminal penalties. And here the important question is - what kind of punishment? In relation to a criminalized act within the framework of the criminal law policy, it will always be of a variable nature.
Own scope of the phenomenon
When analyzing the concepts of depenalization and penalization, one should not assume that the latter is connected only with criminalization. She will also have an independent sphere.
This refers to cases quite common in real life when the legislator changes the sentence for an already committed act, which was previously recognized as criminalized. It can be both its softening and tightening. But nevertheless, it is more accurate to call such a process a change in the intensity of criminalization.
The methods here are very different. These may be changes to the sanctions of the articles of the Special Part of Criminal Law. Making certain adjustments to the provisions of the Basic Volumes of the criminal legislation.
An example is the law of the Russian Federation of July 25, 1998, according to which the maximum amount of the sanction, part 1, article 223 of the Criminal Code was increased to four years in prison. The disposition of this article was retained unchanged.
Three understanding in practice
We continue the theme of "penalization and depenalization in criminal law." Judicial practice is considered the most extensive scope of application of these concepts. The following circumstance is evident here: actual punishability (in other words, penalization in practice) can sometimes diverge from legislative penalization. Cases of clarification of the phenomenon of such a significant inconsistency of the criminal law and its application in society lead to a threefold understanding of the practical kind of penalization.
And here is what is important to highlight here:
- Practical penalties are recognized as the most flexible tool in criminal law policy. It also allows you to adjust and implement a punitive policy for certain groups of crimes. Practical penalization is affected by changes in the dynamics of crime, social reality in general, the operational environment and other reasons.
- Actual punishability serves as an indicator of the validity and appropriateness of giving a crime a certain size and type of punishment. If leniency of punishment in practice will correspond to toughening of punishment in the legislation, then for the legislator it is a peculiar signal about excessive penalization.
- Practical penalization is considered one of the most powerful levers of influence on social justice. Citizens can carry out legislative penalties only for those sentences that are in reality passed by the courts in specific cases. As a rule, the intensity of the penalization is not judged by any sanctions in the articles of the criminal law, but by the actual time and punishment that certain criminals receive for certain crimes.
What is depenalization?
Now consider another important concept. Depenalization is the non-application of punishments for a criminalized act already committed by a person. That is, we have a concept opposite to the previous one.
Depenalization is the application in criminal practice of various methods of exemption from punishment, responsibility provided for by the Criminal Code. This definition shows that depenalization will be significantly different from decriminalization.
What about traditional terminology? Depenalization is an exemption from criminal punishment, criminal liability.
The main varieties
We figured out three key definitions of the term. But also depenalization is a few types of phenomenon. There are three of them:
- Release of a person from serving a sentence. Examples: Articles 73, 79, 82 and 83 of the Russian Criminal Code.
- Release of a citizen from punishment. An example here is the following articles of Russian criminal law: 80 (1), 81.
- Exemption from criminal liability. In the Criminal Code of the Russian Federation this is Art. 75-78.
In law enforcement practice, there is a tendency: the listed types of depenalization are beginning to occupy an increasingly higher place. With their help, important criminal and political problems are solved.
In particular, depenalization, like nothing else, demonstrates the humanism of the Russian legal system. It is also a clear example of the fact that society has developed effective measures to correct criminals without isolating these people from society.
Differentiation and individualization of punishments
After examples of penalization and depenalization, we turn to two other important concepts in criminal policy.
The first is the differentiation of responsibility. If we turn to the point of view of the classical school of criminal practice, we will see the following opinion: for the equally serious acts that were committed by different criminals, the same punishment is assumed. It should be equivalent to the quantity and quality of harm that the offender has done to society and to specific citizens.
But later a different opinion spread. Both the scope and nature of the criminal liability are established only depending on the objective characteristics of the crime. In other words, it must differentiate. Under the influence of the sociological and anthropological schools, this opinion has expanded. In addition to objective, when establishing criminal punishment, subjective signs began to be taken into account. Those that relate specifically to the person who committed the crime.
The means of differentiation today are aggravating and mitigating circumstances, categorization of crimes, privileging and qualifying features of the elements of atrocities, and so on.
The individualization of criminal responsibility is also relevant - the offender will be punished taking into account the social danger of his deed and his personality in particular.
This concludes the analysis of important concepts of criminal policy. Now you know their characteristics, examples, and also key differences among themselves.